Complainant is LeasePlan Corporation N.V., Netherlands, represented by Osborne Clarke N.V., Netherlands.
Respondent is Domain Admin, Hush Whois Protection Ltd., Seychelles.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 18, 2021. On November 18, 2021, the Center transmitted by email to SIDN a request for registrar verification in connection with the Domain Name. On November 19, 2021, 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 Complainant on December 2, 2021, providing the registrant and contact information disclosed by SIDN, and requesting Complainant to submit an amended Complaint. On December 2, 2021, the Center transmitted an email to the Parties regarding the language of proceedings. Complainant filed an amended Complaint on December 6, 2021.
The Center verified that the Complaint as amended 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 Respondent of the Complaint, and the proceedings commenced on December 7, 2021. In accordance with the Regulations, article 7.1, the due date for Response was December 27, 2021. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on December 30, 2021.
The Center appointed Dinant T. L. Oosterbaan as the panelist in this matter on January 20, 2022. 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 BackgroundAccording to the information provided in the Complaint, Complainant is a large leasing organization active under the tradename LEASEPLAN BANK.
According to the evidence submitted, Complainant owns the European Union Trade Mark LEASEPLAN BANK No. 011282852, registered on March 5, 2013.
In addition, Complainant is the owner of a domain name identical to its LEASEPLAN BANK trademark and tradename,
SIDN informed the Center that the Domain Name was first registered on February 12, 2010, and that the date of the current registration by change of registrant is August 9, 2016.
The Domain Name resolves to a pay-per-click parking website, including four links to various banking services competing with Complainant and one link to the website of Complainant.
5. Parties’ Contentions A. ComplainantComplainant submits that the Domain Name is almost identical to Complainant’s trademark and tradename. According to Complainant, the only difference is the deletion of the letter “e” of the trademark and tradename, an obvious misspelling. Complainant argues that the advertising links on the website under the Domain Name to various competing banking services reinforce the likelihood of confusion.
Complainant submits that Respondent has no rights or legitimate interests in the Domain Name. The Domain Name resolves to a pay-per-click website which indicates a lack of legitimate interests, according to Complainant. The website contains hyperlinks directing to websites which offer products and services directly competing with the services of Complainant. According to Complainant, Respondent is also not commonly known by the Domain Name. Complainant stresses that every confusion must be avoided because Complainant provides banking services which require a license of De Nederlandsche Bank (the Central Bank of the Netherlands); Complainant has such license since 1993.
Complainant asserts that the Domain Name has been registered and is being used in bad faith. According to Complainant, Respondent must have been aware of the fact that Complainant is a leading leasing company and also provides banking services. The misspelling of Complainant’s trademark and tradename in the Domain Name indicates that Respondent acts in bad faith as Internet users who make a typographical error are directed to the website of Respondent. Complainant submits that the Domain Name is being used for commercial gain by attracting Internet users through the likelihood of confusion which may arise with the trademark and tradename of Complainant. Complainant adds that the Seychelles registration address of Respondent is unknown, in which would also indicate bad faith on the part of Respondent.
B. RespondentRespondent did not reply to Complainant’s contentions.
6. Discussion and FindingsBased on article 2.1 of the Regulations, a claim to transfer a domain name must meet three cumulative conditions:
a. the domain name is identical or confusingly similar to a trademark or trade name protected under Dutch law in which the complainant has rights, or other name mentioned in article 2.1(a) under II of the Regulations; 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 Respondent has not filed a Response, the Panel shall rule based on 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. Preliminary Matter – Language of ProceedingsAccording to article 17.2 of the Regulations proceedings shall be conducted in the English language whenever the complainant or the respondent neither resides nor is registered in the Netherlands. In exceptional cases the Center (subject to the determination of the Panel) may decide that the complainant or the respondent may make submissions in Dutch.
In its email of December 2, 2021, the Center informed the Parties that, while the formal language of proceedings is English, the Parties may make submissions in Dutch, subject to the panelist’s determination. The Panel concurs with this determination and has accepted the Complaint, as amended, submitted in Dutch, in view of the fact that Respondent has not filed a response or indicated an objection to the Center’s message of December 2, 2021, furthermore taking into account the expedited nature of these proceedings and the fact that the website under the Domain Name is in the Dutch language.
B. Identical or Confusingly SimilarComplainant has established that it is the owner of the European Union Trade Mark and the tradename LEASEPLAN BANK.
The Domain Name incorporates the LEASEPLAN BANK trademark and tradename almost in their entirety, the only difference being the omission of the first “e” in the trademark and tradename. Previous panels under the Regulations have found that a domain name is confusingly similar or identical to a complainant’s trademark where the domain name incorporates the distinctive part or entirety of such trademark. The omission of the letter “e” may thus be disregarded for this purpose. See also sections 1.7 and 1.9 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”).1
The country code Top-Level Domain “.nl” may also be disregarded for purposes of article 2.1(a) of the Regulations, see Roompot Recreatie Beheer B.V. v. Edoco LTD,
WIPO Case No. DNL2008-0008.
The Panel finds that the Domain Name is confusing similar to Complainant’s LEASEPLAN BANK trademark and tradename under the first element of article 2.1 of the Regulations.
C. Rights or Legitimate InterestsAs stated in WIPO Overview 3.0, “while the overall burden of proof in UDRP proceedings is on the complainant, panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the often impossible task of ‘proving a negative’, requiring information that is often primarily within the knowledge or control of the respondent. As such, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element”.
In the Panel’s opinion, Complainant has made out a prima facie case that Respondent lacks rights to or legitimate interests in the Domain Name.
According to the undisputed submission and evidence provided by Complainant, it appears that by using the Domain Name, Respondent through an obvious misspelling of Complainant’s trademark and tradename diverts Internet users to a pay‑per‑click website in the Dutch language featuring links to various third-party websites offering banking services, which directly compete with the services offered by Complainant to its customers.
The Panel does not consider such use a bona fide offering of goods or services, nor a legitimate noncommercial or fair use of the Domain Name.
In addition, there is no evidence before the Panel that Respondent has acquired any relevant trademark or other rights corresponding to the Domain Name nor of any business relationship between Complainant and Respondent. There is also no indication that Respondent is commonly known by the Domain Name.
No Response to the Complaint was filed and Respondent has not rebutted Complainant’s prima facie case.
The Panel finds that Respondent has no rights to or legitimate interests in the Domain Name for purposes of the second element of article 2.1 of the Regulations.
D. Registered or Used in Bad FaithThe Panel finds that the Domain Name has been registered and is being used in bad faith.
SIDN informed the Center that Respondent became the registrant of the Domain Name in August 2016, thus several years after Complainant acquired relevant trademark rights. It is well established that the date Respondent as the current registrant acquired the Domain Name is used to assess bad faith registration (see WIPO Overview 3.0, section 3.9).
Noting the status of the LEASEPLAN BANK mark and the overall circumstances of this case, the Panel finds it highly likely that Respondent knew, and further finds that Respondent in any event should have known, Complainant’s trademark and tradename at the time Respondent became the current registrant, especially in view of the fact that the Domain Name includes almost the entirety of, and is a misspelling of, Complainant’s trademark and tradename and that the Domain Name resolves to a website which is used as a pay-per-click parking website, including links to the website of Complainant itself and to various other banking services competing with the services provided by Complainant.
In light of these circumstances the Panel concludes that Respondent has attempted or is attempting to attract Internet users, for commercial gain, to the website of Respondent through the likelihood of confusion which may arise with the trademark and tradename of Complainant as to the source, sponsorship, affiliation, or endorsement of the website of Respondent, which constitutes registration and use in bad faith.
7. DecisionFor all the foregoing reasons, in accordance with articles 1 and 14 of the Regulations, the Panel orders that the Domain Name
Dinant T. L. Oosterbaan
Panelist
Date: February 2, 2022
1In 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).