WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Ventelo Holding AB v. None
Case No. D2006-0544
1. The Parties
The Complainant is Ventelo Holding AB, Skövde, Sweden, represented by Advokatfirmaet Hus Panzer & Co AS, Norway.
The Respondent is None, Ulsan, Republic of Korea.
2. The Domain Name and Registrar
The disputed domain name <ventelo.com> is registered with Domaininternetname, LLC.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 28, 2006. On May 2, 2006, the Center transmitted by email to Domaininternetname, LLC a request for registrar verification in connection with the domain name at issue. On May 2, 2006, Domaininternetname, LLC transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on May 9, 2006. The Center verified that the Complaint together with the amendment to the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on May 11, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was May 31, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 1, 2006.
The Center appointed Gerd F. Kunze as the sole panelist in this matter on June 7, 2006. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
4. Factual Background
A. The Complainant
The Complainant is the holding company of a group of companies, active in the field of telecommunication services, with subsidiaries in Denmark, Norway and Sweden.
As evidenced by copies of the registration certificates, the group holds a number of trademark registrations consisting of or containing the term “ventelo” in Denmark, Norway and Sweden. In particular, it is the owner of the following registrations for the word mark VENTELO:
- Danish registration no. 2002 01005, dated March 21, 2002, for goods and services in classes 9, 37, 38 and 42 of the international classification.
- Swedish registration No. 353923, dated March 28, 2002, for goods and services in classes 9, 37, 38 and 42.
B. The Respondent
The Respondent registered on September 24, 2005, the domain name <ventelo.com> and uses it for a website that is offering links to other sites and providers of services. On that website, the domain name is also offered for sale.
5. Parties’ Contentions
A. The Complainant
The Complainant submits that in 2005 its turnover has exceeded SEK 2 billion (US $ 275 million) and that it has 215 employees.
It furthermore submits that (A) the domain name <ventelo.com> is identical to its trademark VENTELO in which it has rights; (B) the Respondent has no rights or legitimate interests in respect of the domain name; and (C) the domain name was registered and is being used in bad faith.
B. The Respondent
The Respondent has failed to submit a Response. It has therefore not contested the allegations of the Complaint and the Panel shall decide on the basis of the Complainant’s submissions, and all inferences that can reasonably be drawn there from (Rules, paragraph 14(b)).
6. Discussion and Findings
A. Identical or Confusingly Similar
The domain name <ventelo.com> is identical to the trademark VENTELO, in which the Complainant has rights (the gtld “.com” cannot be taken into consideration when judging identity or confusing similarity).
B. Rights or Legitimate Interests
VENTELO is not a descriptive term, in which the Respondent might have a legitimate user-interest. It is known as the name of the Complainant under which its subsidiaries offer telecommunication services. The Respondent has no connection or affiliation with the Complainant, who has not consented to the Respondent’s use of the domain name.
Furthermore, none of the circumstances listed under paragraph 4(c) of the Policy, possibly demonstrating rights or legitimate interests, are given. The Respondent does not use the domain name for its own legitimate commercial or non-commercial activities, if any, and it has not demonstrated any preparations for such use. On the contrary, the domain name leads to a website with sponsored links to other websites. Even if the Respondent does not use its domain name to promote commercial activities of its own, the Panel is satisfied that providing a link to such websites cannot be considered to be non-commercial. It would make no sense for the Respondent to provide a link to a search site, if it where not to attract a fee, the more as such arrangements are common. Therefore the Respondent’s use of the domain name <ventelo.com> is commercial, but cannot be considered to be a bona fide offering of goods or services. Finally, for the same reason that the Respondent apparently does not promote its own commercial activities with the help of this domain name, the Respondent has not been able to become known under it.
In the absence of any submission of the Respondent, the Panel therefore concludes that the Respondent has no rights or legitimate interests in the domain name.
C. Registered and Used in Bad Faith
For a complainant to succeed, the Panel must be satisfied that a domain name has been registered and is being used in bad faith. As an example the Policy mentions in paragraph 4(b)(i) registration of the domain name primarily for the purpose of selling, renting or otherwise transferring the domain name registration to the Complainant who is the owner of the mark or to a competitor for valuable consideration in excess of its documented out-of pocket costs directly related to the domain name.
A generally applied test is therefore whether a respondent has attempted to sell the domain name for a sum in excess of the respondent’s out of pocket expenses in registering the domain name. The Panel is satisfied that this test is fulfilled.
As evidenced by the Complainant through a copy of the Respondent’s website, as used when the Complaint was submitted, the domain name <ventelo.com> is offered for sale. Visitors are invited to submit an offer to be considered by the Respondent. In the absences of any submission of the Respondent to the contrary the Panel has no doubt that the Respondent would sell the domain name only for an amount in excess of its out of pocket expenses for registering the domain name.
Paragraph 4(b)(iv) of the Policy lists as a further typical situation of evidence of registration and use in bad faith that, by using the domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of its website or of a product or service on its website.
The Complainant has submitted facts and evidence that the Respondent has also fulfilled the conditions set out in paragraph 4(b)(iv) of the Policy. There can be no doubt that the Respondent knew the Complainant’s trademark VENTELO, when it registered the domain name. As evidenced by the Complainant, according to a print out from the Whois database provided by Network Solutions, the Respondent is active in the same business of telecommunication services as the Complainant. Under the circumstances the Panel has no doubt that the Respondent did not by chance create a domain name identical to the trademark and business name of the Complainant, a competitor.
Internet users, when typing the Respondent’s domain name, will expect to arrive at a website of the Complainant or at least a website somehow related to the Complainant. Therefore, by using the domain name for a website, that provides sponsored links to other websites, the Respondent attempts to attract Internet users for commercial gain to this website, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the website. Even where Internet users realize when they view the Respondent’s web page that it is not connected with the Complainant, the Respondent may still profit from their initial confusion, since they may be tempted to click on the sponsored links.
Such exploitation of trademarks to obtain click-through commissions from the diversion of Internet users has been considered in many decisions to be a common example of use in bad faith as referred to in paragraph 4(b)(iv) of the Policy (see L’Oréal, Biotherm, Lancôme Parfums et Beauté & Cie v. Unasi, Inc, WIPO Case No. D2005-0623 with references).
In conclusion, the Panel finds that the Respondent has registered and is using the domain name in bad faith.
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name, <ventelo.com>, be transferred to the Complainant.
Gerd F. Kunze
Dated: June 21, 2006