Complainant is Accent Jobs For People N.V. of Roeselare, Belgium, represented by Gevers Legal NV, Belgium.
Respondent is Lotom Group of Panama City, Panama. 2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with SIDN through EPAG Domainservices GmbH. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 17, 2013. On September 17, 2013, the Center transmitted by email to SIDN a request for registrar verification in connection with the Domain Name. On September 19, 2013, SIDN transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details. The Center verified that the Complaint satisfied the formal requirements of the Dispute Resolution Regulations for .nl Domain Names (the “Regulations”).
In accordance with the Regulations, articles 5.1 and 16.4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on September 27, 2013. In accordance with the Regulations, article 7.1, the due date for Response was October 17, 2013. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on October 18, 2013.
The Center appointed Paul L. Reeskamp as the panelist in this matter on November 11, 2013. The Panel finds that it was properly constituted. The Panelist has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required to ensure compliance with the Regulations, article 9.2. 4. Factual Background
Complainant is Accent Jobs for People N.V., a Belgian company active in the field of human resources and temporary employment.
Complainant is the owner of, inter alia, the following trademark rights:
1. Community trademark registration ACCENT JOBS FOR PEOPLE (word mark), filed on June 22, 2005, no. 4459004, for services in classes 35, 41 and 42;
2. Benelux trademark registration ACCENT JOBS FOR PEOPLE (word/device mark), filed on March 27 2007, no. 821026, for services in classes 35, 41 and 42;
3. Benelux trademark registration ACCENT JOBS (word/device mark), filed on July 15, 2013, no. 941134, for services in classes 35, 41 & 42.
hereinafter referred to as “the Trademarks”.
Respondent is Lotom Group, domiciled in Panama City, Panama. Respondent registered the Domain Name on June 12, 2008. 5. Parties’ Contentions A. Complainant
Complainant bases its complaint on its Trademarks and its trade name rights.
The Domain Name is identical or confusingly similar to Complainant’s Trademarks
Complainant argues that the Domain Name is identical or at least confusingly similar to its Trademarks and trade name, because the Domain Name shows a clear visual, phonetical and conceptual resemblance to Complainant’s rights in such a way that there is a genuine likelihood of confusion between Complainant’s rights and the Domain Name.
Complainant further contends that the top level domain “.nl” can be disregarded in assessing the similarity between the relevant trademark and/or trade name on the one hand, and the contested domain name on the other.
Respondent has no rights to or legitimate interests in the Domain Name
Complainant argues that Respondent does not own any trademark or trade name rights with regard to ACCENT JOBS and that Complainant did not in any way consent to Respondent’s registration and use of the Domain Name.
Complainant notes that the Domain Name has never been used in good faith by Respondent for the actual exploitation of goods and services, nor is the Domain Name being used for any legitimate noncommercial purposes. According to Complainant, Respondent only uses the Domain Name to offer sponsored links to websites of Complainant’s competitors and that it is well established that such domain name parking pages do not constitute a bona fide offering of goods or services. Also, Complainant notes that the Domain Name is being offered for sale.
Complainant further argues that Respondent is not commonly known under the name ACCENT JOBS, or under the name ACCENT.
Respondent has registered or is using the Domain Name in bad faith
Complainant argues that Respondent has never used the Domain Name for the actual offering of goods or services; instead the website which is linked to the Domain Name is being used to offer links to competitors of Complainant. According to Complainant, this further increases the likelihood of confusion on the part of the public.
Complainant contends that Respondent is clearly using the Domain Name for commercial gain, by intentionally attracting Internet users to its website where services similar to those of Complainant are being advertised.
According to Complainant, it is likely that Respondent was well aware of Complainant’s Trademarks and trade name rights at the time of registering the Domain Name, because Complainant is well known.
Furthermore, Complainant argues that Respondent is a reputed domain name squatter, as Respondent has been involved in numerous domain name proceedings. B. Respondent
Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings
Article 10.3 of the Regulations provides that in the event that a respondent fails to submit a response, the complaint shall be granted unless the panel considers it to be without basis in law or fact.
Based on article 2.1 of the Regulations, a claim to transfer a domain name must meet three cumulative conditions:
(a) The disputed domain name is identical or confusingly similar to a trademark or trade name protected under Dutch law in which the complainant has rights, or other name by means of article 2.1 sub a (II) of the Regulations;
(b) The respondent has no rights to or legitimate interest in the disputed domain name;
(c) The disputed domain name has been registered or is being used in bad faith.
Considering these conditions, the Panel rules as follows: A. Identical or Confusingly Similar
Complainant has based its Complaint on its Trademarks and its trade name rights. Although Complainant has failed to submit copies of the original trademark registrations, the Panel is satisfied that the Trademarks qualify as trademarks protected under Dutch law. The Panel has established that Complainant is in fact the owner of the registrations on which the Complaint is based.
It is established case law that the top level domain “.nl” may be disregarded in assessing the similarity between the relevant trademark(s) on the one hand, and the disputed domain name on the other (see for example Pieter de Haan v. Orville Smith LTD.,WIPO Case No. DNL2008-0017; and Doka Nederland B.V. v. Media Village B.V.,WIPO Case No. DNL2010-0009). The Domain Name incorporates one of Complainant’s registered trademarks in its entirety (Benelux trademark no. 941134, for ACCENT JOBS) and incorporates the dominant elements of Complainant’s trademark registrations for ACCENT JOBS FOR PEOPLE.
The Panel considers the Domain Name to be confusingly similar to the invoked Trademarks.
Therefore, the first condition of article 2.1 of the Regulations is met. B. Rights or Legitimate Interests
Pursuant to article 2.1(b) of the Regulations, Complainant must demonstrate that Respondent has no rights to or legitimate interest in the Domain Name. This condition is met if Complainant makes a prima facie case that Respondent has no such rights or legitimate interests, and Respondent fails to rebut this (see for example Technische Unie B.V. and Otra Information Services v. Technology Services Ltd.,WIPO Case No. DNL2008-0002).
The Panel is satisfied that – as follows from the Complaint – Respondent does not have any relevant trademark or trade name rights regarding the term ACCENT JOBS and is in no way affiliated to Complainant nor has Respondent received Complainant’s consent to use its Trademarks.
The Panel established that Respondent does in fact use the Domain Name to offer sponsored links to Complainant’s competitors through its website.
Respondent did not dispute this, and the Panel could not establish any indications that any of the circumstances as described in article 3.1 of the Regulations apply, nor that Respondent in any possible other way has a right to or legitimate interest in the Domain Name. The Panel is therefore satisfied that Respondent has no rights to, or legitimate interest in, the Domain Name C. Registered or Used in Bad Faith
Although Complainant has failed to substantiate its claim regarding the well-known reputation of its Trademarks, the Panel considers it to be likely that Respondent was aware of Complainant’s rights at the time of registration, because the registration of two of Complainant’s trademarks predate the registration of the Domain Name, and the Domain Name is linked to a parking page in the Dutch language, indicating that it is directed to Internet users in the Netherlands (and Flanders, the Dutch speaking part of Belgium).
Complainant has submitted as proof print screens of the website which is linked to the Domain Name, which show that the Domain Name is being used – or at least until recently was being used – as a parking page for links to websites relating to human resources and/or temporary employment. Therefore, the Domain Name can be considered as being used for commercial gain, by attracting Internet users to the website of Respondent through the likelihood of confusion which may arise with the Trademarks.
Furthermore, taking into account the various previous administrative panel decisions submitted by Complainant, such as Egon Zehnder International v. Lotom Group S.A.,WIPO Case No. DNL2011-0012 and ANWB v. Lotom Group S.A., WIPO Case No. DNL2010-0072, in which decisions Respondent was involved as the respondent and did not file a response and in which decisions the panel ordered the transfer of the disputed domain names, it seems likely that Respondent follows a pattern of registering and using domain names in bad faith (this indicates that Respondent is a domain name squatter).
In the light of the above, the Panel holds that the third condition of article 2.1 of the Regulations is met. 7. Decision
For all the foregoing reasons, in accordance with articles 1 and 14 of the Regulations, the Panel orders that the domain name be transferred to Complainant.
Paul L. Reeskamp
Panelist
Date: November 19, 2013
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