WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
NKT Holding A/S v. Jesper Wennick
Case No. D2012-1878
1. The Parties
The Complainant is NKT Holding A/S of Brøndby, Denmark, represented by MAQS Law Firm Advokataktieselskab, Denmark.
The Respondent is Jesper Wennick of Copenhagen, Denmark.
2. The Domain Name and Registrar
The disputed domain name <nktgroup.com> is registered with Moniker Online Services, LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 20, 2012. On September 20, 2012, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 21, 2012, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “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 the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on September 27, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was October 17, 2012. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 31, 2012.
The Center appointed Knud Wallberg as the sole panelist in this matter on November 14, 2012. 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
The Complainant is a company incorporated under the laws of Denmark and is the Owner– on a direct or indirect basis – of a group of around 100 companies worldwide.
The companies are active within one of three main business areas - power cables, professional cleaning equipment and fiber optical components and products.
The Complainant, including the associated group of companies, had a revenue of 15,6 bn DKK (2,099 million EUR) in 2011, of which some 80%came from sales outside Denmark, and has approximately 9,000 employees, around 87% of which are employed outside Denmark.
The Complainant owns registered trademarks incorporating the word “NKT” in numerous countries, including Denmark and the European Union. The Trademark NKT has been used since the 1930’s and was first registered as a trademark in Denmark in 1962.
5. Parties’ Contentions
A.1. The domain name is identical or confusingly similar to a trademark in which the Complainant holds rights
The distinctive element of the disputed domain name is “NKT”, which is identical to the Complainant’s well-known NKT Trademark. The suffix “group” is simply a reference to the inclusion of the rest of the companies owned by the Complainant and is the typical term used by the Complainant to describe itself and the companies as a unit and therefore does not sufficiently distinguish the disputed domain name from the Complainant’s marks.
Consequently, the disputed domain name is confusingly similar to the Complainant’s trademarks.
A.2. The Respondent has no rights or legitimate interests in respect of the domain name
The disputed domain name was registered by the Respondent without the Complainant’s knowledge or permission. The Complainant further states that the disputed domain name was registered with the purpose of gaining profit by selling it to the Complainant at an amount in excess of the out of pocket expenses connected to acquiring the disputed domain name. The disputed domain name was thus offered for sale on “www.sedo.com” at a price of EUR 3.888 as well as on the website “www.nktgroup.com” where the text in the upper right corner reads: “KØB DETTE DOMÆNE” (in English: “BUY THIS DOMAIN”). When clicking on the link, the user is led to the “www.sedo.com” website.
In addition - according to the Complainant - the sequence of the correspondence leading up to this Complaint shows that the Respondent has no legitimate interest in respect of the disputed domain name.
The Respondent was first notified of the Complainant’s objections by letter from the Complainant’s lawyer in July 2012. Before this letter, the Complainant, through its lawyer, had been in contact with the prior registrant of the disputed domain name asking for the transfer of the disputed domain name. The prior registrant responded per mail informing that the disputed domain name had been transferred to the Respondent in January 2012 and provided an undated picture of the transfer agreement. The Respondent responded to letter of July 2012, by calling the Complainant’s lawyers and informing them that the Complainant could not demand transfer of the Domain Name and in case further legal action was taken in the matter, the price of the disputed domain name would be raised. The Complainant hereafter made one last attempt to solve the matter amicably by contacting the Respondent directly but was informed by the Respondent that no amicable settlement would be possible unless the requested price was paid for the disputed domain name.
A.3. The domain name was registered and is being used in bad Faith.
The Complainant submits that, by using the disputed domain name in the manner described above, the Respondent is using the domain name in bad faith.
To register a domain name, which incorporates the registered trademark of another and offer this for sale at a very high price, shows bad faith on the Respondent’s part. The fact that the disputed domain name is used for a parking and landing page with pay-per-click links and thus generates income for the Respondent while the Respondent simply waits for someone to buy the disputed domain name at a high price further emphasizes the bad faith.
The Complainant claims, that the above is not uncommon behavior by the Respondent, inferred by the transfer agreement between the prior Registrant and the Respondent. The agreement infers that they were business partners in the field of buying up domain names and administering these according to which: “parterneharvalgt at stoppederessamarbejdeomkringopkøb og driftaf domain navne“ (in English: “the parties have chosen to cease their cooperation of buying up and administering domain names”). The Respondent thus seems to have made a business out of buying domain names incorporating the registered trademarks of others and selling these back at prices much higher than the actual out of pocket expenses connected to the registration of said domain names.
While waiting to make money off selling the disputed domain name incorporating the Complainant’s trademark, the Respondent is meanwhile making money of third parties’ clicks on the links on the website under the domain name. The Respondent is thus capitalizing on the trademark value of the Complainant’s registered rights and the Respondent’s use is unfair and results in misleading diversion of customers looking for the Complainant’s website. The fact that the Respondent continues to use the Domain Name in the manner above despite the Complainant’s objections further evidences the Respondent’s bad faith.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
According to paragraph 15(a) of the Rules the Panel shall decide a complaint in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.
Paragraph 4(a) of the Policy directs that the Complainant must prove each of the following:
(i) that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) that the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name has been registered or is being used in bad faith.
Paragraph 4(a) of the Policy states that the burden of proving that all these elements are present lies with the Complainant. At the same time, in accordance with paragraph 14(b) of the Rules, if a party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, the Rules, or any request from the Panel, the Panel shall draw such inferences there from as it considers appropriate.
A. Identical or Confusingly Similar
The disputed domain name contains the Complainant’s distinctive trademark NKT with the addition of the generic and in this connection descriptive term “group” and the “.com” designation. Since the generic top- level domain (“gTLD”) designation may be disregarded for the purpose of this proceeding, the Panel finds that the disputed domain name is confusingly similar to a mark in which the Complainant has rights.
The Panel therefore finds that the conditions in paragraph 4(a)(i) of the Policy are therefore fulfilled.
B. Rights or Legitimate Interests
According to the Complaint, the Complainant has not licensed or otherwise permitted the Respondent to use its trademark.
The Complainant has established a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name. The Respondent has not rebutted this and the way the Respondent is using the disputed domain name, makes it inconceivable to the Panel that any rights or legitimate interests may exist.
Consequently the Panel finds that the conditions in paragraph 4(a)(ii), cf. paragraph 4(c) of the Policy are also fulfilled.
C. Registered and Used in Bad Faith
Paragraph 4(a)(iii) of the Policy requires the Complainant to prove both registration and use of the disputed domain name in bad faith. Paragraph 4(b) of the Policy provides examples of circumstances which shall be evidence of registration or use in bad faith:
(i) circumstances indicating that the domain name holder has registered or has acquired 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 trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the holder’s documented out-of-pocket costs directly related to the domain name; or
(ii) the domain name holder has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the domain name holder has engaged in a pattern of such conduct; or
(ii) the domain name holder has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the domain name holder has intentionally attempted to attract, for commercial gain, Internet users to the domain name holder’s website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the holder’s website or location or of a product or service on the domain name holder’s website or location.
Accordingly, for the Complainant to succeed, the Panel must be satisfied that the disputed domain name has been registered and is being used in bad faith.
Given the distinctive nature of the Complainant’s trademark NKT and the reputation of the mark in Denmark, it is inconceivable to the Panel that the Respondent registered the disputed domain name without prior knowledge of the Complainant or without the intention of targeting the Complainant.
The Panel therefore finds that the disputed domain name was registered in bad faith.
The Respondent has been using the disputed domain name actively for what appears to be a standardized pay-per-click parking page. In addition to this content, the webpage has contained a statement saying “Buy this domain” and it has also been documented that the disputed domain name is actually for sale at “www.sedo.com”. This type of setup by the Respondent is a clear indication of bad faith use as previously stated in other UDRP decisions such as The Procter & Gamble Company v. Names2000.com, WIPO Case No. D2010-0357 concerning the domain name <antikal.com>, and in Representaciones De Materias Primas Industriales Ltda. v. Names2000.com, WIPO Case No. D2011-0029, concerning the domain name <maprin.com>
Noting that the disputed domain name incorporates a registered and reputed trademark, that no Response has been filed, and that there appears to be no conceivable good faith use that could be made by the Respondent of the disputed domain name, and considering all the facts and evidence, the Panel therefore finds that the requirements of paragraph 4(a)(iii) of the Policy are also fulfilled in this case.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <nktgroup.com> be transferred to the Complainant.
Dated: December 6, 2012