WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Koninklijke Luchtvaart Maatschappij N.V. v. Hans Nieuwland
Case No. D2001-0691
1. The Parties
The Complainant is Koninklijke Luchtvaart Maatshappij N.V. of Amsterdamseweg 55, 1182 GP Amstelveen, The Netherlands. The Respondent is Hans Nieuwland of P.O. Box 5, Wallan, V 3756, Australia.
2. The Domain Name and Registrar
2.1 The domain name in issue is <royal-dutch-airlines.com>. The Registrar is Register.com, Inc.
3. Procedural History
3.1 The Complaint was dated May 23, 2001, and received by the WIPO Arbitration and Mediation Center (the "Center") on May 23, 2001. An amended complaint dated June 18, 2001, was received by the Center on June 18, 2001, correcting deficiencies in the original complaint that were communicated to the Complainant by the Center on June 18, 2001. This amendment concerned the identity of the Respondent whose correct identity was confirmed by the Registrar, Register.com Inc., in a communication dated June 15, 2001.
3.2 No response to the Complaint has been filed. Notice of the proceedings was served on the Respondent in accordance with the rules applicable to the Uniform Domain Name Dispute Resolution Policy ("the Policy"). Notification of Respondent Default was served on July 16, 2001. A Panel was constituted on August 6, 2001, with a single panelist, Nick Gardner. A statement of acceptance and declaration of impartiality and independence has been filed by the Panelist.
3.3 The date scheduled for the Panel to render its decision is August 8, 2001.
3.4 The Complainant is represented by Ms. R.W.P. Oostingh of Tripolis 300, Burgerweeshuispad 301, Postbus 75084, 1070 AB, Amsterdam, The Netherlands. The Respondent is not represented in this proceeding.
4. Factual Background
4.1 The Complainant relies on the trademark ROYAL DUTCH AIRLINES, which is registered in the Benelux countries, evidence of which, is provided in Annex D to the complaint.
4.2 The Respondentís registration of the <royal-dutch-airlines.com> domain name occurred on September 7, 1999.
4.3 With effect from January 2001, representatives of the Complainant endeavoured to contact the Respondent. These approaches did not result in any response from the listed Respondent.
4.4 On January 25, 2001, the Complainant, through its attorneys, sent a letter by courier and email to the Respondent demanding immediate cessation of the use of the ROYAL DUTCH AIRLINES mark together with abandonment of the domain name in dispute. A reminder was sent to the Respondent on February 9, 2001, by email.
4.5 The Respondent refused to take delivery of the couriered letter of January 25, 2001, and has not replied to the emails sent by the Complainant.
5. The Claimants Contentions
5.1 These are set out at length in the Complaint but may be summarized as follows:
- The domain name at issue is directly associated with the Complainant, it being the oldest commercial airline in the World having been established in 1919. The Complainant currently trades under the names Koninklijke Luchtvaart Maatshappij N.V. and Royal Dutch Airlines (which is the English translation of Koninklijke Luchtvaart Maatshappij).
- The Complainant has provided the panel with evidence to demonstrate the use of the mark ROYAL DUTCH AIRLINES with the Companyís stationery (envelopes and headed notepaper) and various websites used both by the Complainant and its partner airlines (such as Northwest Airlines) (see Annex F and Annex G).
- As a result of the use of its mark ROYAL DUTCH AIRLINES worldwide, the Complainant has amassed considerable goodwill and recognition for this mark.
- The domain name <royal-dutch-airlines.com> is identical, or at a minimum, confusingly similar to the Complainant's name and mark.
- The Complainant is the proprietor of the Benelux registration for the word mark ROYAL DUTCH AIRLINES (See Annex D).
- The Respondent has no legitimate reason to register or maintain the domain name <royal-dutch-airlines.com> and has failed to articulate any rights in or legitimate reason for registering the domain name.
- The domain name <royal-dutch-airlines.com> is unrelated to the Respondent and the Respondent does not use the name in its business or as part of its legal or corporate name.
- The Complainant has not licensed the use of ROYAL DUTCH AIRLINES by the Respondent and there is no link between the Respondentís business activities and the Complainantís.
5.2 The Respondent has not provided any submissions to this Panel.
6. Discussion and Findings
6.1 The Panel has reviewed the Complaint and the documents annexed to the Complaint. In the light of this material this Panel finds as set out below.
6.2 This Panel does not find there are any exceptional circumstances within paragraph 5(e) of the ICANN Rules applicable to the Policy so as to prevent this Panel determining the Complaint, notwithstanding the failure of the Respondent to lodge a Response. Details of these proceedings have been served in accordance with the relevant requirements, namely in compliance with Rule 2(a) of the ICANN Rules.
6.3 The domain name <royal-dutch-airlines.com> is confusingly similar to the Complainant's registered trade mark. That mark however appears to the panel to have been registered after the date the domain name was registered. The panel is nevertheless satisfied that the Complainant has sufficient unregistered rights to bring itself within the Policy, both by its use of the name on its stationery and by virtue of the name being the English translation of its own name in Dutch.
6.4 The Complainant accordingly has a substantial reputation and goodwill in the mark Royal Dutch Airlines and its activities predate those of the Respondent.
6.5 There is no evidence to show that the Respondent had any legitimate basis to register the domain name or any intent to use it in any manner unconnected with the Complainant's business. Absent such evidence the Panel concludes that the Complainant is correct and that the name was registered and is being maintained with the intention either of reselling it to the Claimant or of preventing without due cause the Complainantís use of the name in the hope that would encourage the Complainant to make a payment to the Respondent to gain control of the name. This constitutes use in bad faith within the meaning of the policy.
7.1 In the light of the above findings, the Panelís decision is as set out below.
7.2 The domain name is confusingly similar to the Complainant's trademarks (see paragraph 4(a)(i) of the Policy).
7.3 The Respondent has no rights or legitimate interests in the domain name (see paragraph 4(a)(ii) of the Policy).
7.4 The domain name was registered and is being used in bad faith (see paragraph 4(a)(iii) of the Policy).
7.5 This Panel directs that the domain name be transferred to the Complainant.
Dated: August 6, 2001