The Complainant is Oiltanking Amsterdam B. V., the Netherlands, represented by Van Doorne N.V., the Netherlands.
The Respondent is Jacob Princewiill, Nigeria. 2. The Domain Names and Registrar
The disputed domain names The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 18, 2019. On the same day, the Center transmitted by email to SIDN a request for registrar verification in connection with the Domain Names. On September 19, 2019, 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 October 1, 2019. In accordance with the Regulations, article 7.1, the due date for Response was October 21, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 24, 2019. The Center appointed Wolter Wefers Bettink as the panelist in this matter on November 12, 2019. 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 an independent operator of tank terminals for crude oil, petroleum products, chemicals, and gas under the name “Oiltanking” since 1972. It operates 71 terminals in 24 countries with a total storage capacity of 20 million cubic meters. The Complainant owns various trade mark registrations worldwide, including - Benelux trade mark OILTANKING, registered on June 1, 1988, first use claim: 1975, under No. 0154987; - Benelux device mark OILTANKING, registered on June 1, 1988, first use claim: 1975, under No. 0154988; - International device mark OILTANKING, registered on November 11, 2011, under No. 1116354; hereafter together referred to as the “Trade Marks”. The domain name The domain name The Website mentions that it belongs to Oiltanking Amsterdam and the email address “info@oiltankinglogistics.nl” is displayed under the contact details on the website. This email address is used to send emails, confirming alleged agreements in the name of the Complainant (see Annex 5), thereby creating the impression that they have been sent by the Complainant. Furthermore, the Complainant has found out that the domain name In addition, the domain name According to the Complainant the Domain Names are identical to, or at least closely resemble, the Trade Marks as they contain the Benelux trade mark OILTANKING, while the addition of the descriptive term “logistics” does not take away the confusing similarity and the country code Top-Level Domain (“ccTLD”) “.nl”, is usually disregarded in making this assessment. In addition, the Complainant asserts, by using inter alia the trade name “Oiltanking Amsterdam”, the Website creates the false impression that it is an official website of the Complainant. The Complainant submits that the Respondent has no rights or legitimate interests in respect of the Domain Names since the Respondent has not been authorized to use the Complainant’s name or the Trade Marks, while creating the false impression that it is the Complainant, which cannot be considered a bona fide offering of goods or services. The Complainant adds that the Respondent damages the Complainant's reputation, due to the fact that visitors cannot reach anyone via the contact information provided on the Website, as a result of which visitors can get the impression that the Complainant is unavailable or unable to maintain the Website. Furthermore, the Complainant states, the Complainant’s customers may get a wrong impression of the Complainant’s company due to the Respondent’s conduct which can be extremely harmful to the good reputation of the Complainant. The Complainant contends that the Respondent registered the Domain Names in bad faith, by intentionally incorporating the Trade Marks in the Domain Names. Furthermore, in respect of the domain name 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 Names are 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 Names; and c. the Domain Names have been registered or are 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 The Trade Marks are held by “Oiltanking GmbH”, of which Complainant is a subsidiary. Complainant has evidenced that it is authorized to bring the Complaint. The Complainant has shown that it has registered rights in the Trade Marks by virtue of section 1.4 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”)1 . The Domain Names are confusingly similar to the Trade Marks as they incorporate the mark OILTANKING in its entirety (see also WIPO Overview 3.0, section 1.7). According to section 1.8 of the WIPO Overview 3.0, where the relevant trade mark is recognizable within the disputed domain name, the addition of other terms (in this case the descriptive terms “logistics” and “logistic” respectively) would not prevent a finding of confusing similarity under the first element. The ccTLD “.nl” is typically disregarded under the confusing similarity test, since it is a technical registration requirement (see WIPO Overview 3.0, section 1.2). Therefore, the Panel finds that the Domain Names are confusingly similar to the Trade Marks in which the Complainant has rights. B. Rights or Legitimate Interests Under article 3.1 of the Regulations, the Complainant has to make out a prima facie case that the Respondent does not have rights to or legitimate interests in the Domain Names upon which the burden of production on this element shifts to the Respondent to come forward with relevant evidence demonstrating rights to or legitimate interests in the Domain Names (WIPO Overview 3.0, section 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 Trade Marks as part of the Domain Names and that it is not an authorized retailer or distributor of the Complainant’s products or otherwise authorized to use the Trade Marks. The Respondent has not provided evidence, nor is there any indication in the record of this case that the Respondent is commonly known by the Domain Name (see, article 3.1(b) of the Regulations). The use on the Website of both the Trade Marks and the trade name “Oiltanking Amsterdam” and false contact details does not qualify as a bona fide offering of goods or services, in accordance with article 3.1 (a) of the Regulations. The Panel concludes that the Complainant has met the second requirement of article 2.1(b) of the Regulations. C. Registered or Used in Bad Faith In accordance with article 3.2 of the Regulations, the Complainant has to show that the Domain Names were registered or are being used in bad faith. Based on the information and the evidence provided by the Complainant, the Panel finds that at the time of registration of the Domain Names the Respondent was or should have been aware of the Complainant and the Trade Marks. In particular, such knowledge and intent is derived from the following facts: (i) the Respondent’s registration of the Domain Names occurred over 30 years after the registration of the Trade Marks; (ii) the element OILTANKING of which the Trade Marks consist, is incorporated in its entirety in the Domain Names; (iii) the use of the trade name “Oiltanking Amsterdam” on the Website; (iv) a simple trade mark register search, or even an Internet search, prior to registration of the Domain Names would have informed the Respondent of the existence of the Trade Marks. Noting also its considerations under section 6B above and the involvement of the Website and the email address connected to the domain name For all the foregoing reasons, in accordance with articles 1 and 14 of the Regulations, the Panel orders that the domain names Wolter Wefers Bettink 1 In view of the fact that the Regulations are to an extent based on the Uniform Domain Name Dispute Resolution Policy (“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).
Panelist
Date: November 27, 2019
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