The Complainant is Aué Beheer B.V. of Swifterbant, the Netherlands, represented by Ploum, the Netherlands.
The Respondent is Larry Borro of Moscow, Russian Federation. 2. The Domain Name and Registrar
The disputed domain name is registered with SIDN through Gandi. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 27, 2018. On the same day, the Center transmitted by email to SIDN a request for registrar verification in connection with the disputed domain name. On June 29, 2018, 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 July 5, 2018. In accordance with the Regulations, article 7.1, the due date for Response was July 25, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 26, 2018.
The Center appointed Alfred Meijboom as the panelist in this matter on July 27, 2018. 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 holding company of RenYap Multiservice B.V. (“RenYap”), which is specialized in industrial cleaning services mainly for soya and protein factories in the port of Amsterdam.
The disputed domain name was registered on January 3, 2017, and previously resolved to a website that suggested that the Complainant processes, stores and handles oil, petroleum products, gases, chemicals, biofuels, and edible oils. It also gave the impression that the Complainant owns and operates oil terminals in the port of Rotterdam, which in reality are owned by Odfjell Terminals (Rotterdam) B.V. (“Odfjell”). On Odfjell’s request to the relevant webhost, the Respondent’s website was taken offline and the disputed domain name currently resolves to a parking page of such webhost. 5. Parties’ Contentions A. Complainant
The Complainant alleges that the disputed domain name comprises its trade name in its entirety.
The Complainant further alleges that the Respondent has no rights or legitimate interests in the disputed domain name as the website to which the disputed domain name resolved (the “Website”) was used for fraudulent activities, impersonating the Complainant and capitalizing off the reputation of Odfjell and its terminals in the port of Rotterdam. By doing so, the Respondent lured Internet users looking for oil storage services to the Website, using the disputed domain name for scamming activities by convincing third parties to do business with the scammers behind the Website. According to the Complainant, such use of the disputed domain name cannot be qualified as a bona fide offering of services and/or goods.
The Complainant also claims that the Respondent must have been aware of the Complainant’s trade name when it registered the disputed domain name as the Respondent referred to the Complainants’ trade name, its address and its Chamber of Commerce registration number on the Website. According to the Complainant the Respondent can have no logical and acceptable justification using the trade name in the disputed domain name and using the Complainant’s details than to defraud others. The Complainant also put forward that the Respondent had been using the disputed domain name to intentionally attempt to attract, for commercial gain, Internet users to its Website as stated before. The Respondent used an anonymized email address for its administrative and technical contact details. According to the Complainant the use of such anonymized contact information is a clear indication of bad faith, as the Respondent obviously had reasons to hide its identity. 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 panelist considers it to be without basis in law or in 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.
Based on article 2.1 of the Regulations, a request to transfer the disputed domain name must meet three cumulative conditions:
a. the disputed 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
a. the respondent has no rights to or legitimate interests in the disputed domain name; and
b. the disputed domain name has been registered or is being used in bad faith. A. Identical or Confusingly Similar
The Complainant alleges that the disputed domain name includes its “Trade Name” for which reason the first element would be met. However, the Complaint does not specify the meaning of “Trade Name”. However, Annex 9 to the Complaint provides examples of several of the Complainant’s invoices to Ren Yap for management fees, printed on stationary with the name “Aué Beheer B.V.”, as well as tax declarations and assessments and an invoice from an accounting firm, all sent to “Aué Beheer B.V.”. Therefore the Complainant sufficiently showed that “Aué Beheer” is the Complaint’s trade name as meant in Article 1 of the Dutch Trade Name Act.
It is further established case law that the country code Top-Level Domain “.nl” may be disregarded in assessing the similarity between the Complainant’s right(s) on the one hand and the disputed domain name(s) on the other hand (see, e.g., Roompot Recreatie Beheer B.V. v. Edoco LTD,WIPO Case No. DNL2008-0008).
As the domain name comprises the trade name in its entirety, with the exception of the acute accent and space between Aué and Beheer, the Panel finds that the disputed domain name is identical to the Complainant’s trade name.
Consequently, the Complainant has satisfied the requirement of article 2.1(a) of the Regulations. B. Rights or Legitimate Interests
Article 2.1(b) of the Regulations requires the Complainant to demonstrate that the Respondent has no rights to or legitimate interests in the disputed domain name. This condition is met if the Complainant makes out a prima facie case that the Respondent has no such rights or legitimate interests and if the Respondent fails to rebut this (see, e.g., Technische Unie B.V. and Otra Information Services v. Technology Services Ltd.,WIPO Case No. DNL2008-0002).
The Panel is satisfied that the Complainant has made such a prima facie case, showing that the Respondent has not used the disputed domain name in connection with a bona fide offering of goods or services before the Respondent had received the notice of the dispute, and that the Respondent was not commonly known by the disputed domain name or a similar name. More particularly the Respondent’s undisputed use of the Website, and the Complainant’s impersonation and false use of the Complainant’s details and those of Odfjell, as part of scamming activities are certainly not bona fide offering of goods or services.
The Panel finds that the Complainant has satisfied the requirement of article 2.1(b) of the Regulations. C. Registered or Used in Bad Faith
All circumstances discussed in Section 6.B above, more particularly the Respondent’s intentional use of the Complainant’s trade name and company details on the Website for scamming activities, result in the Panel’s finding that the Respondent registered and used the disputed domain name in bad faith.
Consequently, the requirement of article 2.1(c) of the Regulations has also 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.
Alfred Meijboom
Panelist
Date: August 6, 2018
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