The Complainant is Daniël Ignatius Charles Philip Houben of Geulle, the Netherlands, represented by Das Rechtsbijstand, the Netherlands.
The Respondent is Luca Koertig of Admannshagen, Germany. 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 August 31, 2018. On September 3, 2018, the Center transmitted by email to SIDN a request for registrar verification in connection with the Domain Name. On September 12, 2018, SIDN transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on September 12, 2018, providing the registrant and contact information disclosed by SIDN, and inviting the Complainant to submit an amended Complaint. The Complainant filed an amended Complaint on September 27, 2018, and an amendment to the Complaint on October 2, 2018. The Center verified that the amended Complaint together with the amendment to 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 3, 2018. In accordance with the Regulations, article 7.1, the due date for Response was October 23, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 24, 2018.
The Center appointed Willem J. H. Leppink as the panelist in this matter on November 6, 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 following facts are undisputed:
The company currently owned by the Complainant has existed since February 8, 1972. The Complainant is the owner of this business since November 29, 2011. The Complaint manufactures furniture and other items, such as wooden doors, windows, and frames.
The Complainant operates his business under the name “Meubelmakerij Houben” (the “Trade Name”).
Until August 31, 2017, the Complainant was the holder of the Domain Name. Until this date, the Domain Name resolved to a website of the Complainant on which he offered his products and services.
The Domain Name was registered by the Respondent on August 31, 2017, and resolves to a web shop that appears to be offering for sale shoes (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, or at least corresponds to in such a way that confusion could arise.
The Complainant is the former holder of the Domain Name, but failed to renew the Domain Name in time.
The Respondent does not use the Domain Name for business activities in the furniture manufacturing industry. The Website only shows photographs of shoes and does not contain other (relevant) information, such as the Respondent’s contact details or address details. The combination of offering for sale shoes and using a Domain Name that includes a clear reference to the furniture manufacturing industry is illogical. The Respondent is abusing the Domain Name, which was mistakenly not renewed in time by the Complainant. 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 he has rights in the Trade Name. Under the Dutch Trade Name Act such rights originate from the actual use of a trade name; the mere registration is insufficient. In order to prove the use of the Trade Name, the Complainant only provided an invoice that includes use of the Trade Name. In this regard, the Panel refers to section 4.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”)1 stating that a panel may undertake limited factual research into matters of public record if it would consider such information useful to assessing the case merits and reaching a decision. Such research may include consulting historical resources such as the Internet Archive (“”) and accessing (trade name) registration databases. Following a brief Internet search, the Panel was able to verify that the Complainant is using the Trade Name in the course of trade under the Dutch Trade Name Act. In light of the above and in the absence of a Response, the Panel accepts that the Complainant has a right to the Trade Name.
The Panel finds that the Domain Name is confusingly similar to the Trade Name as the Domain Name incorporates the Trade Name in its entirety. In fact, the Domain Name contains all the elements of the Trade Name and uses the elements “Meubelmakerij” and “Houben” in the opposite order, compared to the Trade Name.
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, a complainant must demonstrate that a respondent has no rights to or legitimate interests in respect of the Domain Name. A 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, an individual located in Germany, does not appear to be affiliated with the Complainant in any way. There is no evidence that Meubelmakerij Houben is the Respondent’s name or that the Respondent is commonly known as Meubelmakerij Houben. There is also no evidence that the Respondent is, or has ever been, a licensee of the Complainant or that the Respondent has ever asked, and 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.
Given the lack of contact information on the Website and the fact that the Domain Name does not relate to the products offered thereon (ostensibly, shoes), the Panel notes that the Website is unlikely to be a genuine web shop and does not point to a bona fide offering of goods or services.
It is also clear from the facts that the Respondent is not making any legitimate noncommercial or fair use of the Domain Name.
The Respondent has failed to respond to the Complaint or to take any steps to rebut the Complainant’s arguments.
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 facts presented by the Complainant and the lack of a response by the Respondent, the Panel finds that the Domain Name has been registered and is used in bad faith. The Panel finds it likely that the Respondent was well aware of how the Complainant was using the Domain Name before the registration lapsed and was seeking to take opportunistic advantage of the expiry of the registration. (The Respondent registered the Domain Name on the day on which the Complainant missed his renewal dealine; see in this regard section 3.2.1 of the WIPO Overview 3.0). Furthermore, the Panel notes that the address provided by the Respondent for the registration of the Domain Name does not correspond to an existing address in Germany. This all constitutes evidence of bad faith registration and use in accordance with article 3.2(b) of the Regulations.
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 8, 2018
1 In view of the fact 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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