The Complainant is Paulusma Reizen bv of Drachten, the Netherlands, internally represented.
The Respondent is Yorkshire Enterprises Limited of St. Johns, Antigua and Barbuda. 2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with SIDN through S Gmbh. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 11, 2017. On the same day, the Center transmitted by email to SIDN a request for registrar verification in connection with the Domain Name. On October 12, 2017, 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 satisfies 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 October 13, 2017. In accordance with the Regulations, article 7.1, the due date for Response was November 2, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 3, 2017.
The Center appointed Willem J. H. Leppink as the panelist in this matter on November 9, 2017. 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 following facts are undisputed.
The Complainant is a coach company and travel agency based in the northern part of the Netherlands and in existence for more than 90 years.
The Complainant operates under the trade name “Paulusma Reizen B.V.” (the “Trade Name”) and is the owner of the domain name .
The Domain Name was registered by the Respondent on January 16, 2005. The Domain Name resolves to a website that includes sponsored links to websites related to the Complainant’s business (the “Website”). 5. Parties’ Contentions A. Complainant
To the extent relevant, the Complainant contends the following.
The Complainant has rights in the Trade Name, to which the Domain Name is identical.
The Respondent does not have any kind of relationship with the Complainant and is not authorized to use the Complainant’s name or Trade Name. The Respondent did not reply to emails sent by the Complainant.
By choosing the Domain Name the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its Website by creating a likelihood of confusion with the Trade Name as to the source, sponsorship or affiliation or endorsement of the Website, which amounts to bad faith registration and use under the Regulations.
The Complainant has received emails from consumers who had booked excursions via the sites referred to on the Website and complained that the service (which in fact was delivered by third parties) was not what they expected. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
Pursuant to article 2.1 of the Regulations the Complainant must prove each of the following three elements:
a. the Domain Name is identical or confusingly similar to:
I) a trademark or trade name protected under Dutch law in which the Complainant has rights; or
II) a personal name registered in the General Municipal Register (Gemeentelijke Basisadministratie) of a municipality in the Netherlands, or the name of a Dutch public legal entity or the name of an association or foundation registered in the Netherlands under which the Complainant undertakes public activities on a permanent basis; 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.
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 in fact. A. Identical or Confusingly Similar
Pursuant to article 2.1(a) under I of the Regulations, the Complainant must establish that the Domain Name is identical or confusingly similar to a trademark or trade name in which the Complainant has rights.
The Complainant has asserted that it has rights in the Trade Name and the Panel has been able to verify that the Complainant uses the Trade Name.
The Panel finds that the Domain Name is identical to the Trade Name as the Domain Name incorporates the Trade Name in its entirety.
The Complainant has established the first element of article 2.1 of the Regulations. B. Rights or Legitimate Interests
Pursuant to article 2.1 of the Regulations, Complainant must demonstrate that Respondent has no rights to or legitimate interests in respect of the Domain Name. Respondent may demonstrate such rights or legitimate interests on its part inter alia through the following circumstances listed in article 3.1 of the Regulations:
a. before having any notice of the dispute, [Respondent] made demonstrable preparations to use the Domain Name (or a name corresponding to the domain name) in connection with a bona fide offering of goods or services;
b. [Respondent] as an individual, business or other organization is commonly known by the Domain Name;
c. [Respondent] is making a legitimate noncommercial use of the Domain Name, without intent for commercial gain to misleadingly divert consumers or to tarnish or otherwise damage the relevant trademark, trade name, personal name, name of a Dutch public legal entity or name of an association or foundation located in the Netherlands.
The Respondent does not appear to be affiliated with the Complainant in any way. There is no evidence that Paulusma Reizen is the Respondent's name or that the Respondent is commonly known as Paulusma Reizen. There is also no evidence that the Respondent is, or has ever been, a licensee of the Complainant and that the Respondent has ever asked, or has ever been permitted in any way by the Complainant to register or use the Trade Name, or to apply for or use any domain name incorporating the Trade Name.
Furthermore, the use of the Domain Name cannot be considered a bona fide offering of goods or services. In particular, the Respondent did not demonstrate any use or demonstrable preparation to use the Domain Name in connection with a bona fide offering of goods or services. It is also clear that the Respondent is not making any legitimate noncommercial or fair use of the Domain Name.
The Panel finds that the Respondent merely uses the Domain Name to misleadingly divert Internet users to its Website. On the Website, potential consumers looking for Complainant’s products are induced to click on the sponsored links and redirected to websites related to the Complainant’s business.
Consumer confusion is all the more likely as the Domain Name solely and entirely includes the Trade Name. The Respondent has failed to respond to the Complaint or to take any steps to counter the prima facie case established by the Complainant.
The Panel finds that the Respondent lacks rights to or legitimate interests in the Domain Name.
The Complainant has thus established the second element of article 2.1 of the Regulations. C. Registered or Used in Bad Faith
In light of its considerations under Section 6.B, the Panel finds that the Domain Name has been registered and is used in bad faith. The Respondent has been using the Domain Name to intentionally attempt to attract, for commercial gain, Internet users to its Website, by creating a likelihood of confusion which may arise with the Trade Name as to the source, sponsorship and endorsement of the Website. This constitutes evidence of bad faith registration or use in accordance with article 3.2(d) of the Regulations.
From the screenshot provided of the Website, the Panel understands that the Website includes a notice in German language that states that the sponsored links on the Website are automatically generated. In case of trade mark issues, the owner of the Domain Name should be contacted directly via the contact details that can be found in the WhoIs information of the Domain Name. The Panel finds that the mere existence of this disclaimer – and apart from the fact that Complainant’s clients are most likely to be located in the Netherlands – cannot cure bad faith, as the Respondent remains responsible for the use of the Domain Name. See in this regard sections 3.5 and 3.7 of WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”).1
The Panel finds that the Complainant has also established the third element of article 2.1 of the Regulations. 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 J. H. Leppink
Panelist
Date: November 22, 2017
1 In view of the fact that that the Regulations are to an extent based on the UDRP, it is well established that cases decided under both the Regulations and the UDRP are relevant to this proceeding (see, e.g., Aktiebolaget Electrolux v. Beuk Horeca B.V.,WIPO Case No. DNL2008-0050).
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