The Complainant is Itho Daalderop Group B.V., Netherlands, represented by Novagraaf Nederland B.V., Netherlands.
The Respondent is Rudnev Af, Ukraine.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 21, 2021. On October 22, 2021, the Center transmitted by email to SIDN a request for registrar verification in connection with the Disputed Domain Name. On October 25, 2021, SIDN transmitted by email to the Center its verification response disclosing registrant and contact information for the Disputed Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on October 29, 2021, providing the registrant and contact information disclosed by SIDN, and requesting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on October 29, 2021.
The Center verified that the Complaint together with the amended 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 November 1, 2021. In accordance with the Regulations, article 7.1, the due date for Response was November 21, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 22, 2021.
The Center appointed Thijs van Aerde as the panelist in this matter on December 14, 2021. 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 BackgroundThe Complainant develops, manufactures and sells heating, tap water, ventilation, and control technology solutions. In connection with these business operations, the Complainant operates the domain name
The Complainant holds, inter alia, the following trademark registration (the “Trademark”):
- Benelux Trademark ITHO DAALDEROP, registered on December 18, 2013, registration no. 944851.
The Disputed Domain Name was registered by the Respondent on October 12, 2021, and does not resolve to an active website.
5. Parties’ Contentions A. ComplainantThe Complainant asserts that the Disputed Domain Name is confusingly similar to the Trademark to which the Complainant has rights. In the Disputed Domain Name, the letter “i” was simply replaced with the letter “l” (small “L”). For average Internet users, it is hard to see the difference between “itho daalderop” and “ltho daalderop”, according to the Complainant. Depending on the font, a capital “i” looks identical to a lower case “L” (namely “I”).
The Complainant contends that the Respondent has no rights to or legitimate interests in the Disputed Domain Name. The Respondent has no relationship with the Complainant and/or the Trademark. According to the Complainant, the use of Trademark in the Disputed Domain Name by the Respondent falsely creates the impression that the Disputed Domain Name was registered by the Complainant. The Respondent has no trademark registrations for “itho daalderop” or “ltho daalderop” and the Respondent is not commonly known by the Disputed Domain Name.
The Complainant argues that the use and registration of the Disputed Domain Name by the Respondent are in bad faith, as the Respondent should have been aware of the Trademark when registering the Disputed Domain Name in October 2021. According to Complainant, it is no coincidence that the Respondent registered a domain name that is confusingly similar to the Complainant’s earlier trademark rights. The Disputed Domain Name aims to benefit from the possible confusion of Internet users with the Trademark so as to lead them to the Disputed Domain Name.
B. RespondentThe Respondent did not reply to the Complainant’s contentions.
6. Discussion and FindingsPursuant to article 2.1 of the Regulations the Complainant must prove each of the following three elements:
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,
b. the Respondent has no rights or legitimate interests in the Disputed Domain Name; and,
c. the Disputed 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 SimilarThe Complainant established that it has rights in the Trademark.
The Disputed Domain Name is confusingly similar to the Trademark. By comparison to the Trademark, the Disputed Domain name contains one misspelling of the Trademark as previously described. The Panel finds that the Disputed Domain Name thus still contains sufficiently recognizable aspects of the Trademark, see Digital Revolution BV v. Domain Admin, Hush Whois Protection Ltd.,
WIPO Case No. DNL2018-0050, and section 1.9 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”).1
In assessing confusing similarity, the country code Top-Level Domain “.nl” may be disregarded; see Roompot Recreatie Beheer B.V. v. Edoco LTD,
WIPO Case No. DNL2008-0008.
Under article 2.1(b) of the Regulations, a complainant must make at least a prima facie showing that a respondent possesses no rights to or legitimate interests in a disputed domain name. See, Auto 5 v. E. Shiripour,
WIPO Case No. DNL2008-0027, and WIPO Overview 3.0, section 2.1. Once a complainant makes such a prima facie showing, the burden of production shifts to the respondent. If the respondent fails to come forward with evidence showing rights or legitimate interests, the complainant will have sustained its burden under the second element of the Regulations.
The Complainant has not authorized or consented to the Respondent’s use of the Trademarks (in the Disputed Domain Name or otherwise). Further, there is no evidence or reason to suggest that the Respondent is commonly known by the Disputed Domain Name as meant in article 3.1(b) of the Regulations.
The Respondent has not replied to the Complainant’s contentions, for example by producing evidence of demonstrable preparations to use the Disputed Domain Name in connection with a bona fide offering of goods or services (see, article 3.1(a) of the Regulations).
The Panel concludes that the Respondent does not have rights to or legitimate interests in the Disputed Domain Name. The Complainant has thus satisfied the second limb of article 2.1 of the Regulations.
C. Registered or Used in Bad FaithThe Respondent registered the Disputed Domain Name using a classic method of typosquatting by replacing the letter “i” in the Trademark with the letter “l” (lower case “L”).
The Panel finds that the registration of the Disputed Domain Name using a misspelled version of the Trademark demonstrates the Respondent’s bad-faith intent to mislead Internet users and divert customers looking for the Complainant’s website and services.
In accordance with section 3.3 of WIPO Overview 3.0 concerning the passive holding of a domain name, the Panel’s conclusion of bad faith also extends to the use of the Disputed Domain Name.
The Panel finds that the Respondent’s conduct is a deliberate attempt to derive financial benefit from typosquatting, thus constituting bad faith.
The requirement of article 2.1(c) of the Regulations has thus been met.
7. DecisionFor all the foregoing reasons, in accordance with articles 1 and 14 of the Regulations, the Panel orders that the domain name
Thijs van Aerde
Panelist
Date: December 28, 2021
1 In view of the fact that the Regulations are substantially similar to the Uniform Domain Name Dispute Resolution Policy (“UDRP”), it is well established that both cases decided under the Regulations and cases decided under the UDRP, and therefore WIPO Overview 3.0, may be relevant to the determination of this proceeding (see, e.g., Aktiebolaget Electrolux v. Beuk Horeca B.V.,
WIPO Case No. DNL2008-0050).