The Complainant is Truvo Belgium Comm.V of Antwerp, Belgium, represented by Novagraaf Nederland B.V., the Netherlands.
The Respondent is M. Nuijens of Zwolle, the Netherlands. 2. The Domain Name and Registrar
The disputed domain name (the "Domain Name") is registered with SIDN through AXC. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on April 15, 2014. On April 15, 2014, the Center transmitted by email to SIDN a request for registrar verification in connection with the Domain Name. On April 16, 2014, SIDN transmitted by email to the Center its verification response confirming that the 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 the Respondent of the Complaint, and the proceedings commenced on April 16, 2014. In accordance with the Regulations, article 7.1, the due date for Response was May 6, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on May 7, 2014.
The Center appointed Willem Hoorneman as the panelist in this matter on May 20, 2014. 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
The Complainant is a Belgian digital media and marketing company active under the trade name Truvo Belgium and/or Truvo. The company was first registered in 1968 under the name of Promedia, and has been undertaking commercial activities, in particular providing advertising and associated products and services (including issuing the Belgian yellow pages companies directory) on a permanent basis under the name Truvo since September 2007. The Complainant is also 100% owner of the Dutch technology development company Truvo Services & Technology BV in Amsterdam.
The Complainant is holder of the following trademark registrations (hereinafter collectively referred to as the "Trademarks") for goods and services in classes 16, 35 and 41 (including: newspapers and periodicals, advertising, business and company information services and publishing, all the foregoing also via the Internet):
- Community trademark registration for the word mark TRUVO (no. 005632948; filing date: January 22, 2007; registration date: February 13, 2012); and
- Community trademark registration for the word/figurative mark TRUVO (word in special script and colour) (no. 006288484; filing date: September 18, 2007; registration date: February 15, 2012).
The Complainant is also commercially active on the Internet operating websites under the domain names and through which its goods and services are also offered and advertised.
The date of the current registration of the Domain Name is July 11, 2012, by change of registrant. 5. Parties' Contentions A. Complainant
The Complainant contends that the Domain Name is identical or confusingly similar to its Trademarks and its trade name TRUVO.
The Complainant claims that the Respondent has no rights to or legitimate interests in the Domain Name. According to the Complainant, the Respondent has no registered trademark or trade name identical or similar to, and is not commonly known under, the Domain Name. No relation between the Respondent and a company name or family name TRUVO could be found.
The Complainant asserts that the Domain Name has been registered in bad faith, as the Respondent was or should have been aware of the Complainant's Trademarks and trade name. The Domain Name was first registered on May 22, 2007 by the Complainant and in 2012 accidentally not renewed due to an internal miscommunication. The Domain Name was then registered by the Respondent as soon as it became available, for the main purpose of blocking the Complainant from using the Domain Name or to disturb the Complainant's activities. It is likely that the average Internet user will be confused with regard to the origin of the Domain Name when coming across the Domain Name on the Internet and will most likely expect the Domain Name to be owned by, or at least related to, the Complainant.
The Complainant contends that the sole reason for the Respondent to choose the name TRUVO for its website is to acquire visitors, accidentally visiting the Respondent's website while having the intention to visit the Complainant's website. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
As the Respondent has not filed a Response, the Panel shall rule on the basis of the Complaint. In accordance with article 10.3 of the Regulations, the Complaint shall in that event be granted, unless the Panel considers it to be without basis in law or fact.
The Panel notes that, in accordance with article 16.4 of the Regulations, the Center has fulfilled its obligation to employ reasonably available means to achieve actual notice of the Complaint to the Respondent.
Pursuant to article 2.1 of the Regulations, the Complainant's request to transfer the Domain Name must meet three cumulative conditions:
a. The 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(a) under II of the Regulations; and
b. The Respondent has no rights to or legitimate interests in the Domain Name; and
c. The 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
The Complainant has based its Complaint on its Trademarks and trade name and has submitted a copy of its trademark registrations demonstrating that it is the holder of the Trademarks. The Trademarks are protected under Dutch law.
It is established case law that the top level domain ".nl" may be disregarded in assessing the similarity between the relevant trademark or trade name on the one hand, and the domain name on the other hand (see: Taylor Made Golf Company, Inc. v. Lotom Group S.A.,WIPO Case No. DNL2010-0067; Roompot Recreatie Beheer B.V. v. Edoco LTD, WIPO Case No. DNL2008-0008).
There is no difference between the Domain Name and (the word element of) the Trademarks and the trade name of the Complainant, so that the Domain Name is textually (and therefore visually and phonetically) identical to the Trademarks.
Therefore, the Panel finds that the Domain Name is confusingly similar to the Trademarks and the trade name of the Complainant, and even virtually identical to the word mark of the Complainant. B. Rights or Legitimate Interests
As a result of its failure to submit a Response, the Respondent did not use the opportunity to show rights to or legitimate interests in the Domain Name. It may be assumed that the Respondent was and is not commonly known by the Domain Name. The record does not include any indication that the Respondent has any relevant trademark or trade name rights regarding the term "truvo".
The Domain Name links to a website of the Respondent that contains a limited number of news/blog items. The website indicates that "Truvo is an independent blog about communication, games, social media, marketing and technology". It is obvious that by using the Domain Name for a blog about subjects such as marketing, communication and technology etc. the Respondent is taking advantage of possible association with the Complainant's Trademarks. Whether such advantage translates into immediate or a rather potential future commercial gain is immaterial in this context. The Panel further notes that the Complainant has indicated, unrebutted by the Respondent, that it was the first registrant of the Domain Name since 2007, but in 2012 mistakenly forgot to timely renew the registration, upon which the Respondent quickly (re-)registered the Domain Name in its own name.
The Panel could not establish any indications that any of the circumstances as described in article 3.1 of the Regulations apply, nor that the Respondent in any possible other way has a right to or legitimate interest in the Domain Name.
Based on the foregoing, the Panel is of the opinion that the Respondent has no rights to or legitimate interests in the Domain Name under the Regulations. C. Registered or Used in Bad Faith
The registration and use of the Complainant's Trademarks and trade name predate the registration and use by the Respondent of the Domain Name by several years. The Complainant owns trademark rights effective and enforceable in the Netherlands, while the Domain Name is in the ".nl" domain space. Moreover, a simple trademark register search would have informed the Respondent of the existence of the Trademarks, while the extract of a recent Google search carried out by the Complainant (submitted as annex to the Complaint) on the search term "truvo" shows that all of the search results on the first page refer to the Complainant (except for the one result that refers to the Domain Name).
In any event, the Panel finds it unlikely that the Respondent was not actually aware of the Complainant's Trademarks and trade name, in particular also given the undisputed indication by the Complainant that it was the initial holder of the Domain Name for many years and the Respondent only registered the Domain Name in its name as soon as the Complainant forgot to timely renew its previous registration thereof. Also, the fact that the Respondent on its website provides information on products and/or services identical or similar to those of the Complainant reinforces the presumption that the Respondent is using the Domain Name to attract Internet users to its website, by creating a likelihood of confusion with the Complainant's Trademarks and trade name as to the source, affiliation, or endorsement of the Respondent's website, thereby taking advantage of the reputation of the Complainant and its Trademarks and trade name.
Having refrained from submitting a Response, the Respondent has failed to provide any evidence to the contrary.
On the above grounds, the Panel finds that the requirements of registration or use in bad faith of the Domain Name pursuant to article 2.1(c) of the Regulations have been 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 the Complainant.
Willem Hoorneman
Panelist
Date: June 3, 2014
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