The Complainant is Loders Croklaan B.V. of Wormerveer, the Netherlands, represented by AKD N.V., the Netherlands.
The Respondent is Lovsk Buganov of Moscow, Russian Federation. 2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with SIDN through PDR Ltd. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 24, 2016. On March 29, 2016, the Center transmitted by email to SIDN a request for registrar verification in connection with the Domain Name. On March 30, 2016, 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 proceeding commenced on April 1, 2016. In accordance with the Regulations, article 7.1, the due date for Response was April 21, 2016. The Respondent sent an email communication to the Center on April 4, 2016, indicating that Complainant’s “request will be granted” and offering to “shutdown immediately”. On April 12, 2016, the Complainant filed a suspension request and the proceeding was suspended on the same date. At the Complainant’s request, the proceeding was reinstituted on May 9, 2016. After reinstitution, the due date for Response was extended to May 18, 2016. The Respondent did not submit any formal response. In accordance with the Regulations, on May 19, 2016, the Center notified the parties that it would forward the Respondent’s email communication to SIDN for the commencement of the mediation process.
On May 25, 2016, SIDN commenced the mediation process. On June 28, 2016, SIDN informed parties that the dispute had not been solved in the mediation process.
The Center appointed Wolter Wefers Bettink as the panelist in this matter on July 14, 2016. 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 supplier of oil and fats and is part of the group of companies IOI Loders Croklaan B.V. It is the owner of inter alia the Benelux trademark LODERS CROKLAAN registered as of October 15, 1999 under no. 0659937 and valid until October 15, 2019, and EU trademark LODERS CROKLAAN registered as of July 2, 2001 under no. 001713825, hereafter the “Trade Marks”.
The Complainant originally used the trade name “Croklaan” and currently uses both the trade name “Loders Croklaan” (the “Trade Name”) and the trade name “IOI Loders Croklaan”.
The Respondent has registered the Domain Name on January 23, 2016.
The Complainant has received e-mails from three companies in the oil business which had received an invoice from a company called “Loders Croklaan Terminal BV” or “Loders Croklaan B.V.” for the storage of oil in the Rotterdam area. One of the recipients pointed out that the invoice mentioned the Domain Name and that the website to which the Domain Name resolved contained the following statement:
“Croklaan Terminal BV is a global provider of chemical, Oil tanker shipping and tank storage services. Croklaan Terminal BV is a Subsidiary Company under the IOI Loders Croklaan Netherland”.
The companies involved requested the Complainant to clarify whether this “Croklaan Terminal BV” was in fact a part of the group to which the Complainant belongs. 5. Parties’ Contentions A. Complainant
The Complainant contends that its company was set up in the Netherlands by Messrs. Crok and Laan who used the trade name “Croklaan” for their company. The staff association of the Complainant, which was incorporated in 1978, still carries the name “Croklaan”. After the acquisition of the company by the IOI Group the Complainant also uses the trade name “IOI Loders Croklaan”. The Complainant submits that the “Croklaan” element of the trade name remains a unique and highly distinctive dominant part of the trade name and the Trade Marks. In addition, the Complainant notes that, outside the IOI Loders Croklaan Group, no company bearing the name “Croklaan” is registered in the Dutch Trade Registry.
According to the Complainant it is currently one of the leading oils and fats suppliers in Europe.
The Complainant states that it has not given any party the right to use the Trade Marks, nor has any party been given the right to operate under the name Croklaan Terminal BV. The Complainant submits that the Domain Name appears to be part of a fraudulent scam. The Complainant states that it has become aware of the Domain Name and the website because it was contacted by several international companies that received fake agreements and invoices from the Respondent.
A browser search does not provide any information on the history of a company with the name Croklaan Terminal BV. Furthermore, the Complainant submits, no company is registered at the address provided on the website connected to the Domain Name.
After the Complainant contacted the Respondent the reference to “IOI Loders Croklaan Netherland” was deleted, the Complainant submits. The Complainant points out that the website does not actually offer any products or services related to the terminal and tank farm services to which the statement on the website refers. The Complainant concludes that, since the Respondent does not perform any actual legitimate activities under the name Croklaan Terminal BV, the Respondent does not have any rights or legitimate interests in the Domain Name.
According to the Complainant,the false and misleading information and the fake invoices received by companies throughout the world from the Respondent show that the Domain Name is being used to obtain commercial advantages on the basis of the internationally renowned name “Croklaan”. In addition, the Complainant alleges, the use of the name Croklaan Terminal BV causes confusion with the Trade Name and the Trade Marks.
The Complainant states that the bad faith intent of the Respondent is also illustrated by the initial statement on the website, claiming that Croklaan Terminal BV was part of the Complainant’s group of companies.
The Complainant also points out that LODERS CROKLAAN is a famous trademark in the B2B oils and fats industry and that the use of the element “Croklaan” will lead to confusion with the relevant public, as this may be led to believe that there is an association with the Complainant. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
The Trade Name and the Trade Marks consist of the elements “Loders” and “Croklaan”, the latter being incorporated in its entirety in the Domain Name. “Croklaan” as a whole is a coined term which in itself is a highly distinctive element in both the Trade Name and the Trade Marks. Although both also contain the – in itself distinctive – element “Loders” this does not change the confusing similarity of the Domain Name and the Trade Name on the one hand and the Domain Name on the other hand. The addition of the generic word “terminal” to the word “Croklaan” does not alter this similarity, as the element “Croklaan” is the dominant part (see also WIPO Overview of WIPO Panel views on selected UDRP Questions, Second Edition (“WIPO Overview 2.0”), paragraph 1.9).1 The country code Top-Level Domain (“ccTLD”) “.nl” is typically disregarded under the confusing similarity test, since it is a technical registration requirement (see also WIPO Overview 2.0, paragraph 1.2).
Therefore, the Panel finds in accordance with article 2.1(a)(I) of the Regulations that the Domain Name is confusingly similar to both a trade name and several trade marks, owned by the Complainant, which are protected in the Netherlands. B. Rights or Legitimate Interests
The Complainant has to make out a prima facie case that the Respondent does not have rights to or legitimate interests in the Domain Name (WIPO Overview 2.0, paragraph 2.1). Based on the evidence and the undisputed submissions of the Complainant, the Panel concludes that the Respondent has not received the Complainant’s consent to use the element “Croklaan” as part of the Domain Name.
In addition, evidence submitted by the Complainant justifies the conclusion that the Domain Name is used in connection with a non-existing company Croklaan Terminal BV which sends out fake invoices for storage of oils and fat in the Rotterdam area. This evidence also shows that a statement on the website to which the Domain Name resolved falsely claims that this company was a subsidiary of IOI Loders Croklaan, the group to which the Complainant belongs.
Therefore, the Domain Name is not being used for “a bona fide offering of goods or services”, nor is there a “legitimate noncommercial or fair use” of the Domain Name (see article 3.1(c) of the Regulations and also the cases cited in the WIPO Overview 2.0, paragraph 2.6).
In view of the above, the Panel concludes that the Complainant has established that the Respondent has no rights to or legitimate interests in the Domain Name. C. Registered or Used in Bad Faith
In accordance with article 3.1 of the Regulations, the Complainant has to show that the Domain Name was registered or is used in bad faith. Evidence of the use of the Domain Name in connection with a non-existing company Croklaan Terminal BV, which sends out fake invoices for storage of oils and fat in the Rotterdam area, the sector where the Complainant is a well-known company, shows that the Respondent, when registering the Domain Name, was aware of, and indeed specifically targeted, the Complainant, the Trade Name and the Trade Marks.
Noting also the false claim that this company was a subsidiary of IOI Loders Croklaan, the group to which the Complainant belongs, it is clear that the Domain Name was registered and used to obtain illicit gain by creating confusion created through the Domain Name similar to the Trade Marks and the Trade Name (see article 3.2(d) of the Regulations). In particular, as the evidence shows, the Respondent thereby led Internet users to believe that the Domain Name and the website to which it resolved were used by a company forming part of the group of companies to which the Complainant belongs, while in fact the Domain Name and the website were used for fraudulent purposes.
Therefore, the Panel concludes that the Domain Name was registered and has been used in bad faith. 7. Decision
For all the foregoing reasons, in accordance with articles 1 and 14 of the Regulations, the Panel orders that the disputed domain name be transferred to the Complainant.
Wolter Wefers Bettink
Panelist
Date: July 29, 2016
1 While the Complaint is brought under the Regulations, and not the Uniform Domain Name Dispute Resolution Policy ("UDRP"), given the similarities between the two, where applicable the Panel considers UDRP precedent relevant to the current proceeding, and will refer to it throughout.
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