The Complainant is Loders Croklaan B.V. of Wormerveer, Netherlands, represented by Shieldmark.Zacco, Netherlands.
The Respondent is LODERSCROKLAAN.COM/Loders Croklaan, Paul Bakker of Vancouver, Canada.
The disputed domain name <loderscroklaan.com> (the “Domain Name”) is registered with Nameview Inc. (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 11, 2009.
The Center transmitted its request for registrar verification to the Registrar on September 14, 2009 and sent reminders to the Registrar on September 17, 2009 and September 22, 2009. The Registrar replied on September 23, 2009, confirming that it had received a copy of the Complaint, that the Domain Name was registered with it, that the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”) applied to the Domain Name, that the Domain Name would expire on January 22, 2010, and had been or was in the process of being placed on Registrar Lock, and that the registration agreement was in English.
However, the Registrar denied that the Respondent was the current registrant of the Domain Name and provided the contact details held on its WhoIs database, according to which the Domain Name was registered in the name of “Loders Croklaan Paul Bakker”. The Registrar added: “Arrangements will be made to release the domain name <loderscroklaan.com> to you as soon as possible. Please ensure that that the complaint for the domain is terminated immediately.”
By email of September 24, 2009, the Center informed the Complainant of this statement and of the contact details held by the Registrar and asked the Complainant to confirm whether it had obtained actual control over the Domain Name. The Complainant replied by email on September 25, 2009, stating that the Domain Name had not been transferred to it, that the registrant had not provided the authorisation code for the Domain Name to it, and that therefore it could not withdraw the Complaint. The Complainant invited the registrant to take care of the assignment before September 29, 2009, so that the proceeding would not need to be continued.
On September 30, 2009, the Center verified that the Complaint satisfied the formal requirements of the UDRP, 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 paragraphs 2(a) and 4(a) of the Rules, the Center formally notified the Respondent (as identified in the Complaint), and the proceeding commenced on September 30, 2009. In accordance with paragraph 5(a) of the Rules, the due date for Response was October 20, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on October 21, 2009.
The Center appointed Jonathan Turner as the sole panelist in this matter on October 27, 2009. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with paragraph 7 of the Rules.
Having reviewed the file, the Panel is satisfied that the Complaint complied with applicable formal requirements, was duly notified to the Respondent and has been submitted to a properly constituted Panel in accordance with the Policy, the Rules and the Supplemental Rules.
The Complainant is a leading supplier of fats and oils for the food industry. Its business was founded in the 1800s and it has used the mark LODERS CROKLAAN since 1987. It has registered LODERS CROKLAAN and logos containing LODERS CROKLAAN as trademarks in numerous countries and many of these registrations pre-date 2002. The Complainant has a website at “www.croklaan.com”.
The Domain Name was registered in 2002 and the registrant is currently identified as “LODERSCROKLAAN.COM” with email addresses which change every two days. At the date of the Complaint the Domain Name was pointed to a web page which displayed links relating to fats, lipids and nutrition, amongst others.
The Complainant tried to contact the registrant of the Domain Name several times by email without response and by registered letter, which was returned.
The Complainant states that it has rights in the mark LODERS CROKLAAN and that the Domain Name is identical or confusingly similar to this mark.
The Complainant further claims that the Respondent has no rights or legitimate interests in respect of the Domain Name and that it was registered and is being used in bad faith. The Complainant alleges that the Respondent acquired the Domain Name primarily for the purpose of placing third party advertisements on its website at the Domain Name to gain money, and that the Respondent is therefore attempting to attract Internet users to its website for commercial gain by creating a likelihood of confusion with the Complainant's trademarks.
The Complainant requests a decision that the Domain Name be transferred to it.
As stated above, the Respondent did not reply to the Complainant's contentions.
In accordance with paragraph 4(a) of the Policy, in order to succeed in this proceeding, the Complainant must prove (i) that the Domain Name is identical or confusingly similar to a mark in which it has rights; (ii) that the Respondent has no rights or legitimate interests in respect of the Domain Name; and (iii) that the Domain Name has been registered and is being used in bad faith.
In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from the Respondent's default as it considers appropriate. This includes the acceptance of plausible evidence of the Complainant which has not been disputed.
The Panel finds on the evidence that the Complainant has registered and unregistered rights in the mark LODERS CROKLAAN.
The Panel further finds that the Domain Name is identical to this mark for the purpose of the first requirement of the UDRP. For this purpose it is well established that the generic top level domain suffix should be discounted.
The first requirement of the UDRP is satisfied.
The Panel considers that the use made by the Respondent of the Domain Name does not constitute a bona fide offering of goods or services for the purpose of paragraph 4(c)(i) of the UDRP. The content of the Respondent's web page appears to be automatically generated and does not provide any service. In any case, the Panel finds that it is not a bona fide use of the Domain Name. On the contrary, it is a use in bad faith to attract Internet users to the Respondent's web page by confusion with the Complainant's mark and to profit from click-through commissions when some of those Internet users are diverted by the links provided to other websites.
It is evident that the Respondent is not commonly known by the Domain Name or any corresponding name. The Panel further finds that the Respondent is not making legitimate noncommercial or fair use of the Domain Name. On the contrary, the Respondent is making illegitimate and unfair use of the Domain Name to profit through click-through commissions from confusion and diversion of Internet users as described above.
On the evidence, there does not appear to be any other basis on which the Respondent could claim to have rights or legitimate interests in respect of the Domain Name, and the Panel finds that it does not. The second requirement of the UDRP is satisfied.
The Panel finds on the evidence that the Respondent is using the Domain Name intentionally to attract Internet users to its website for commercial gain in the form of click-through commissions on sponsored links by creating a likelihood of confusion with the Complainant's trademark as to the source of the website.
In accordance with paragraph 4(b)(iv) of the UDRP this constitutes evidence of registration and use of the Domain Name in bad faith. There is no material in the file which displaces this presumption. The provision by the Respondent of false contact details concealing its identity further corroborates the evidence of bad faith.
The Panel concludes that the Domain Name was registered and is being used in bad faith. The third requirement of the UDRP is satisfied.
The Panel notes that the name and contact details of the registrant on the Registrar's WhoIs database were changed following the Complaint and the Center's request for registrar verification, and that this has occurred in other cases concerning domain names registered with the Registrar, as discussed in FOSS A/S, FOSS NIRSystems INC v. fossnirsystems.com c/o Whois IDentity Shield /Admin, Domain, WIPO Case No. D2008-1256. The Panel further notes that the Center drew this practice to the attention of ICANN by letter of April 16, 2008.
As well as causing inconvenience and delay in proceedings under the UDRP, it appears to the Panel that this conduct is in breach of paragraph 8(a) of the UDRP if done on the instructions of the registrant and in breach of paragraph 7 of the UDRP if done without. Either way, the involvement of the Registrar in such conduct is not compatible with its responsibilities as an accredited registrar. The Panel would respectfully suggest that this issue be addressed by ICANN without further delay.
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, <loderscroklaan.com> be transferred to the Complainant.
Dated: November 6, 2009