Complainant is Sennheiser electronic GmbH & Co. KG (“Complainant”), with its registered office at Wedemark, Germany, represented by Vereenigde, the Netherlands.
Respondent is Technology Services Ltd (“Respondent”), with its registered office at Paris, France.
The disputed domain name <senheiser.nl> is registered with SIDN via EuroDNS S.A. (the “Domain Name”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 16, 2008 (e-mail) and September 17, 2008 (hardcopy). On September 17, 2008 the Center transmitted by email to SIDN a request for registration verification in connection with the Domain Name. On September 18, 2008, SIDN transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. Complainant filed the Complaint in English as Respondent is established in France and likely not acquinted with the Dutch language. Respondent did not reply to the English Complaint. In accordance with article 16 of the Regulations, the Center provisionally decided that the Complaint would be accepted in the English language as the Respondent is located outside the Netherlands and Complainant filed the Complaint in English. 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 15.5, the Center formally notified Respondent of the Complaint, and the proceedings commenced on September 22, 2008. In accordance with the Regulations, article 7.1, the due date for Response was October 12, 2008. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on October 13, 2008.
The Center appointed Willem J.H. Leppink as the panelist in this matter on October 16, 2008. The Panelist finds that the Panelist was properly appointed. The Panelist has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required to ensure compliance with the Regulations, article 8.2.
As mentioned above, Complainant filed the Complaint in the English language. Respondent has not responded to this Complaint. As Respondent is established in France and it is likely that it will not be acquainted with the Dutch language, the Panelist agrees with the Center to accept the Complaint in English. Although the Dutch language in principle is the language for procedures under the Regulations, the Panelist determines that the language of this procedure shall be English, so as to help Respondent, which is probably not acquainted with the Dutch language, to understand the procedure and the decision.
Complainant provides, for more than 60 years, a wide range of recording, transmission and sound reproduction products, in particular headphones and microphones under the trade mark SENNHEISER. In additional, Complainant is also one of the world's leading manufacturers of complete audio solutions. Complainant uses the trade marks SENNHEISER and the same trade name all over the world, including the Netherlands.
Respondent is a French company and uses the Domain Name. According to the publicly available WhoIs information of SIDN the Domain Name was registered on March 16, 2005.
Complainant has claimed to hold rights in the following trade mark registrations which are valid in the Benelux:
- CTM registration no. 370122 of the wordmark SENNHEISER for goods in classes 9, 10 and 16, filed on September 26, 1996.
- CTM registration no. 1594308 of the wordmark SENNHEISER for goods and services in classes 3, 9, 18, 21, 25, 28, 38, 41 and 42, filed on April 5, 2000.
- International registration no. 808137 of the wordmark SENNHEISER for goods in classes 9 and 16, filed on June 20, 2003.
- International registration no. 670839 of the wordmark SENNHEISER for goods in class 9, filed on March 6, 1997.
- International registration no. 590780 of the devicemark SENNHEISER for goods in class 9, filed on August 10, 1992.
Complainant has submitted copies of these registrations.
Furthermore, Complainant has stated that the trade name Sennheiser is used in relation to audio related products and services for many years in the Netherlands. This can be derived from the extracts from the .nl website, which Complainant has submitted.
Complainant has stated that the Domain Name is used for a commercial website which only displays sponsored links to companies selling SENNHEISER products. The website also lists headphones and audio equipment of other brands and links to companies which sell products of competitors of Complainant as well. Complainant has submitted a print-out of this website.
Complainant has argued that the only difference between the Domain Name and the above mentioned trade marks and trade name is a missing letter “n” in the Domain Name. Therefore, Complainant has stated that the similarity between the trade mark and the Domain Name is identical from a phonetic point of view and highly similar from a visual point of view. Finally, Complainant has stated that there is also a risk of confusion among the public which may think that the website and the Domain Name are in any manner related to Complainant.
Moreover, Complainant has alleged that regarding the intensive and widespread use of the SENNHEISER trade marks in relation to these products, the trade marks SENNHEISER can be seen as well known trade marks within Europe and in particular in the Netherlands. The use of the sign “senheiser” or the Domain Name takes therefore also unfair advantage of and is detrimental to the distinctive character and the reputation of the trade mark SENNHEISER.
In this respect Complainant has refered to article 2.20(1) b, c and d of the Benelux Treaty on Intellectual Property and article 9(1) b and c of the Regulation.
Furthermore, Complainant has argued that, as far as the use of the Domain Name can be seen as a trade name use, this use infringes Complainants trade name rights as well. Complainant can object on the basis of this ground as well (article 5 Dutch Trade name Act).
Complainant has stated that Respondent has no rights to or legitimate interest in the Domain Name as research in the Benelux, CTM and International trade mark registers and the commercial register of the Chamber of Commerce found out that no trade mark or trade name rights in the name of Respondent were found which are valid in the Benelux. Complainant has submitted copies of this research.
In addition, Complainant has alleged that Respondent made, as far as Complainant is aware of, no demonstrable preparations to use the Domain Name in connection with a bona fide offering of goods or services. The Domain Name is currently being used for a commercial advertising space in relation to goods competing with those of the Complainant.
Finally, Complainant has stated that Respondent is not, nor as an individual, business or other organization, commonly known by the Domain Name.
Complainant has stated that it is obvious that Respondent chose the Domain Name for financial profit only since the sign “Sennheiser” is highly distinctive in relation to inter alia goods and services in classes 9 and 42 and it is clear that Respondent should have had Complainant's trade marks and trade name in mind when it registered the Domain Name.
Furthermore, Complainant has argued that internet users may easily be directed to the website corresponding to the Domain Name, due to the high degree of similarity between the signs. A simple misspelling is not uncommon and Respondent's conduct can be regarded as “typo squatting”. When the public is unaware of such misspelling, the public may easily assume that they are visiting Complainant's website or at least a website which is related to or is under supervision of Complainant. However, in the current situation Complainant does neither have supervision of the website and the Domain Name nor are these in their hands, whilst the content on the website may easily be directed towards Complainant.
Finally, Complainant has referred to a number of previous Domain Name cases in which Respondent also registered domain names by using a misspelling of a trade mark for financial profits (inter alia to The Ford Foundation v. Technology Services Ltd. / Ms Lacy Ana De Oliveira, WIPO Case No. D2007-1711, F. Hoffmann-La Roche AG v. Ms. Lacy Ana De Oliveira, Technology Services Ltd, WIPO Case No. D2008-0093 and Technische Unie B.V. and Otra Information Services v. Technology Services Ltd., WIPO Case No. DNL2008-0002).
Respondent did not reply to Complainant's contentions.
Article 7.4 of the Regulations provides that, in the event that a respondent fails to submit a response, the complaint shall be granted, unless the Panelist considers it to be without basis in law or in fact.
According to article 2.1 of the Regulations, the requested remedy shall be granted if a complainant asserts and establishes each of the following:
a. that the domain name is identical or confusingly similar to
I. a trade mark, or trade name, protected under Dutch law in which the complainant has rights;
II. a personal name registered in a Dutch municipal register of persons (“gemeentelijke basisadministratie”), or a name of a Dutch public legal entity or a name of an association or foundation located in the Netherlands under which the complainant undertakes public activities on a permanent basis; and
b. that respondent has no rights to or legitimate interests in the domain name; and
c. that the domain name has been registered or is being used in bad faith.
Complainant indicates in the Complaint that it relies on its trade mark registrations and Dutch trade name rights. The submitted copies of the trade mark registrations and evidence regarding trade name use, substantiate Complainant's rights to the SENNHEISER trade marks and the same trade name.
In the Domain Name the element “SENHEISER” is the most dominant and distinctive element and this element is nearly identical to Complainant's trade mark and trade name rights. The missing letter “n” does not make any relevant difference. Therefore the Panelist finds that the Domain Name is confusingly similar to Complainant's trade marks and trade name.
The Panelist finds that Complainant has complied with the first ground of article 2.1 sub a of the Regulations.
According to article 2.1 sub b of the Regulations the complainant must demonstrate that the respondent has no rights to or legitimate interests in the domain name. This condition is met if a complainant makes a prima facie case that the respondent has no rights or legitimate interests and the respondent fails to rebut that showing by providing evidence of for example any of the three circumstances mentioned in article 3.1 of the Regulations.
Complainant has established that there are no indications that Respondent has rights to or legitimate interests in the Domain Name as no trade mark rights in the name of Respondent were found which are valid in the Benelux, nor are there any indications of relevant trade name rights. Moreover, Complainant has put forward that there are no indications that, before having notice of the dispute, Respondent made demonstrable preparations to use the Domain Name in connection with a bona fide offering of goods or services. Finally, Complainant has established that Respondent is not commonly known by the Domain Name.
Respondent has not disputed Complainant's assertions, nor has the Panelist found any indications that would suggest that Respondent, a) before having notice of the dispute, made demonstrable preparations to use the Domain Name in connection with the bona fide offering of goods or services, b) is commonly known by the Domain Names, or c) is making a legitimate non-commercial use of the Domain Name.
For these reasons, the Panelist finds that Complainant has satisfied article 2.1 sub b of the Regulations.
Pursuant to article 2.1 sub c of the Regulations the complainant must demonstrate that the domain name has been registered or is being used in bad faith.
Complainant, in accordance with article 3.2 of the Regulations, has stated circumstances which suggest that the Domain Name has been registered or is being used in bad faith. The Domain Name is in use, and Respondent uses the Domain Name and the corresponding website for financial profit only. Respondent has the intention to mislead the internet users as they may be easily directed to the corresponding website in the event they misspell the domain name <sennheiser.nl>. As the content of the website contains links to Sennheiser products, the public may easily assume that they are visiting Complainant's website or a website which is under supervision of Complainant.
Given the fact that Respondent has not submitted a Response and thus not rebutted Complainant's contentions, the Panelist, on the basis of the evidence submitted by Complainant and the argumentation from Complainant, is satisfied that the Domain Name has been registered or is being used in bad faith.
The Panelist thus finds that Complainant has satisfied article 2.1 sub c of the Regulations.
For all the foregoing reasons, in accordance with articles 1 and 13 of the Regulations, the Panel orders that the Domain Name <senheiser.nl> be transferred to Complainant.
Willem J.H. Leppink
Date: October 30, 2008