Complainant is Boels Verhuur B.V. of Sittard-Geleen, the Netherlands, represented internally.
Respondent is Edoco LTD. of Bramhall, Stockport, United Kingdom of Great Britain and Northern Ireland.
The disputed domain name <boelsverhuur.nl> (the “Domain Name”) is registered with SIDN.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 1, 2010. On April 1, 2010, the Center transmitted by email to SIDN a request for registry verification in connection with the Domain Name. On April 2, 2010, SIDN transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details. 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 16.5, the Center formally notified Respondent of the Complaint, and the proceedings commenced on April 15, 2010. In accordance with the Regulations, article 7.1, the due date for Response was May 5, 2010. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on May 6, 2010.
After having received the payment of the fees, the Center appointed Wolter Wefers Bettink as the panelist in this matter on May 17, 2010. 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 9.2.
As Respondent is not domiciled in the Netherlands and there do not appear to be any exceptional circumstances which persuade the Panelist to decide that the proceedings are to be conducted in Dutch, the language of the proceedings is English in accordance with article 17.2 of the Regulations.
Complainant's business is a rental company which rents various items, such as machines and party equipment.
Complainant is, inter alia, the proprietor of the Benelux wordmark BOELS registered under number 154789 on November 6, 1987.
The Domain Name has been registered on August 26, 2004. On March 10, 2010, this domain name was registered in the name of Respondent. The Domain Name currently redirects to the website “www.ndparking.com/boelsverhuur.nl”. This website cites “this domain has been blocked”, without containing any further content.
Complainant contends that <boelsverhuur.nl> is identical to its trade name Boels Verhuur and, so the Panelist understands, confusingly similar to the wordmark BOELS. Complainant asserts to have over 210 megastores in the Netherlands (where it claims to be a market leader), Belgium, Germany, Austria, Poland and the Czech Republic and to use its slogan “Boels verhuurt bijna alles” (which means “Boels rents out almost everything” in English) frequently.
Complainant claims that Respondent has no rights or legitimate interests in the Domain Name. Complainant asserts that its trade name and trademark are widely known in the Netherlands and that Respondent damages the distinctiveness and reputation of the trade name and trademark and that, by using the Domain Name, Respondent abuses the reputation and goodwill of Complainant.
Complainant alleges that the Domain Name is being used in bad faith, because Respondent's use of the Domain Name creates confusion by suggesting that Complainant owns or has authorized the use of the Domain Name by Respondent. As the website under the Domain Name is presently blocked, people are led to believe that Complainant does not exist anymore.
Respondent did not reply to Complainant's contentions.
Complainant has shown that it has rights in the Benelux wordmark BOELS.
Complainant claims rights in the trade name Boels Verhuur. As evidence thereof, Complainant provides an extract of its company from the Dutch Chamber of Commerce Trade Register dated March 31, 2010 showing the trade name Boels Verhuur. Under Dutch law a registration of a trade name in the Trade Register is insufficient to obtain (let alone demonstrate) rights in such trade name. However, a short Google search for ‘Boels verhuur' resulted in around 20.000 hits, including use of that name on Complainant's website and entries in telephone guides and company guides, which are considered to be evidence of trade name use.
The domain name <boelsverhuur.nl> is identical to Complainant's trade name. In addition, since the textual element ‘Boels' is to be considered the dominant part of the domain name, while the Dutch word ‘verhuur' (meaning ‘rent' in English) is generic. The Domain Name is also confusingly similar to Complainant's wordmark BOELS. The use of descriptive or generic words in addition to a trademark in a domain name cannot prevent the domain name from creating a likelihood of confusion. The descriptive and generic elements do not take away the overall impression the dominant part of the domain name, being the Trademark, makes on the public (Sony Kabushiki Kaisha (also trading as Sony Corporation) v. Inja, Kil, WIPO Case No. D2000-1409, F. Hoffman-La Roche AG v. Rudiger Meissner, WIPO Case No. D2009-1127 and Dr. Ing. h.c. F. Porsche v. Bv berry smits trading co, WIPO Case No. DNL2009-0049).
Therefore, the Panelist concludes that the Domain Name is identical to Complainant's trade name and confusingly similar to Complainant's trademark.
Complainant claims that Respondent has no right to or legitimate interest in the Domain Name. The Panelist understands this to mean that Complainant has not granted permission to Respondent to use the Domain Name and that Respondent does not have an own trade name or trademark right for Boels Verhuur or Boels.
The Domain Name redirects to the website “www.ndparking.com/boelsverhuur.nl”. This website contains only the text “this domain has been blocked”. The Panelist finds that this use of the Domain Name does not constitute a legitimate interest in the Domain Name.
As Respondent has failed to file a Response, it has not provided any evidence on its behalf. The Panelist therefore concludes that Respondent has no right or legitimate interest in the Domain Name.
On the basis of the evidence provided, the Panelist is satisfied that the trade name and trademark of Complainant have a strong reputation and are well-known in the Netherlands. The registration of the trademark predates the Domain Name's registration by seventeen years.
The reputation of Complainant's trademark implies that it is difficult to imagine a plausible good faith use of the Domain Name, which is in the “.nl” top level domain.
Furthermore, by using the Domain Name under these circumstances, Respondent has apparently attempted to attract Internet users to its website, by creating a likelihood of confusion with Complainant's trademark as to the source, affiliation, or endorsement of Respondent's website.
The Panelist also finds that Respondent engages in a pattern of such conduct, since it was a respondent in at least three previous domain name disputes involving well-known trademarks and/or trade names (see Roompot Recreatie Beheer B.V. v. Edoco LTD, WIPO Case No. DNL2008-0008, GGD Nederland v. Edoco LTD, WIPO Case No. DNL2008-0015 and De Stichting The Clash of the Coverbands v. Edoco Ltd., WIPO Case No. DNL2009-0050).
The Panelist concludes that the Domain Name is being used in bad faith.
For all the foregoing reasons, in accordance with articles 1 and 14 of the Regulations, the Panelist orders that the domain name <boelsverhuur.nl> be transferred to Complainant.
Wolter Wefers Bettink
Dated: May 31, 2010