WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Coöperatieve Raiffeisen-Boerenleenbank B.A. (Rabobank Nederland) v. Adam Culbertson, Culbertson
Case No. DNL2010-0075
1. The Parties
Complainant is Coöperatieve Raiffeisen-Boerenleenbank B.A. (Rabobank Nederland) of Amsterdam, the Netherlands, represented by Novagraaf Nederland B.V., the Netherlands.
Respondent is Adam Culbertson, Culbertson of Honolulu, Hawaii, United States of America.
2. The Domain Names and Registrar
The disputed domain names <raabobank.nl>, <rabaobank.nl>, <rabbobank.nl>, <rabobabk.nl>, <rabobamk.nl>, <rabobanl.nl>, <rabobsnk.nl> and <rabokank.nl> are registered with SIDN through Internet Service Europe*).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 3, 2010. On December 3, 2010, the Center transmitted by email to SIDN a request for registrar verification in connection with the disputed domain names. On December 6, 2010, SIDN transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details. In response to a communication from the Center regarding the identity of Respondent, Complainant filed an amendment to the Complaint on December 7, 2010. The Center verified that the Complaint together with the amendment to 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 16.4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on December 8, 2010. In accordance with the Regulations, article 7.1, the due date for Response was December 28, 2010. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on December 29, 2010.
The Center appointed Madeleine De Cock Buning as the Panel in this matter on January 13, 2011. The Panel finds that it was properly constituted. 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.
On January 14, 2011 the parties were informed on behalf of the appointed Panel that it has come to the Center’s attention that the Annexes to the Complaint as submitted by Complainant, although each named differently, were in fact all the same. In light of this, Complainant was requested to submit the correct version of the Annexes to the Complaint to the Center by January 21, 2011. Respondent was allowed until January 28, 2011, to submit any reaction as a result of such submission by Complainant. On January 18, 2011, Complainant submitted the correct version of the Annexes to the Complaint. Respondent did not submit any reaction.
On February 16, 2011, parties were informed that, due to exceptional circumstances, the date by which the Panel shall submit its Decision to the Center is extended to February 23, 2011.
4. Factual Background
Complainant Coöperatieve Raiffeisen-Boerenleenbank B.A. (Rabobank Nederland) is a financial service provider with 637 locations in 48 different countries of the world.
Complainant is the owner of several trademark registrations for RABOBANK for inter alia financial services, the Benelux trademarks 341976 registered on May 1, 1977, and 150217 registered on May 1, 1987, and the International trademark registration 603216 designated for the European Community registered on June 2, 1993, hereafter together referred to as the RABOBANK trademark.
The disputed domain names are registered with SIDN through Internet Service Europe*) by Respondent on several data in the years 2004 and 2005:
<raabobank.nl>, registered on February 27, 2005;
<rabaobank.nl>, registered on May 8, 2004;
<rabbobank.nl>, registered on May 30, 2004;
<rabobabk.nl>, registered on May 20, 2004;
<rabobamk.nl>, registered on May 30, 2004;
<rabobanl.nl>, registered on May 29, 2004;
<rabobsnk.nl>, registered on February 27, 2005;
<rabokank.nl>, registered on February 27, 2005.
Complainant has submitted evidence that all disputed domain names offer links to other websites with sponsored listings in the financial context. Such websites featuring pay-per-click advertisements are also known as parking pages.
5. Parties’ Contentions
(a). Complainant is the owner of several trademark registrations for RABOBANK as listed under paragraph 4 above. RABOBANK is an internationally well-known trademark. The disputed domain names are phonetically and visually confusingly similar to the trademarks of Complainant. This creates the likelihood of confusion between Complainant’s trademarks and Respondent’s disputed domain names.
(b). Respondent does not have any right or legitimate interest in the disputed domain names. There are no (registered) rights in identical or similar trademarks found by Complainant that could justify the registration of the disputed domain names by Respondent. Respondent is not generally known as RABOBANK either.
There is no evidence that Respondent is using, or planning to use, the disputed domain names in connection with a bona fide offering of goods or services. The disputed domain names are held passively. Visitors are forwarded to a domain name parking page, featuring pay-per-click advertisements and links.
(c). The disputed domain names have been registered and are being used in bad faith. When the disputed domain names were registered, RABOBANK was already an internationally well-known trademark, using its trademark worldwide already for 30 years. Given the fame of its trademark together with its presence on the Internet, Complainant is convinced that Respondent should have known of the existence of Complainant and its trademarks. The disputed domain names are registered with the intention to cause confusion and intentionally attempt to attract Internet users to Respondent’s websites by using domain names which are highly similar to the well-known trademark RABOBANK, for commercial gain. Visitors searching for Complainant’s website that make a misspelling of the trademark RABOBANK will be forwarded to a domain name parking page, featuring pay-per-click advertisements and links.
Respondent did not reply to Complainant’s contentions.
6. Discussion and Findings
In accordance with the Regulations, article 10.3, in the situation where, as is the case here, a respondent has failed to submit a timely Response, the panel shall rule the dispute on the basis of the complaint. The panel shall grant the remedy, except if the panel considers the complaint to be without basis in law or fact.
A. Identical or Confusingly Similar
Complainant has shown that it has rights in the trademark RABOBANK. The Panel finds that the disputed domain names are confusingly similar to Complainant’s trademark. The disputed domain names are phonetically and visually confusingly similar to the trademark of Complainant: the disputed domain names are all misspellings of Complainant’s trademark.
The Panel finds that there is a likelihood of confusion between Complainant’s trademark on the one hand and the disputed domain names that are registered and used by Respondent on the other.
B. Rights or Legitimate Interests
Complainant claims that Respondent has no rights to or legitimate interests in the disputed domain names, as Respondent has no registered rights in terms similar to the disputed domain names, Respondent is not using the disputed domain names for a bona fide offering of goods or services, nor is Respondent commonly known by the disputed domain names or making any legitimate noncommercial use of the disputed domain names. The Panel understands this further to mean that Complainant has not granted permission to Respondent to use the disputed domain names.
The Panel finds that the disputed domain names resolve to parking pages that offer links to, inter alia, websites on which goods and services of Complainant’s competitors are offered. It is by now well established that parking pages built around a trademark (as contrasted with pages built around a dictionary word and used only in connection with the generic or merely descriptive meaning of the word) do not constitute a bona fide offering of goods or services, nor do they constitute a legitimate noncommercial use (see mVisible Technologies, Inc. v. Navigation Catalyst Systems, Inc., WIPO Case No. D2007-1141; Mobile Communication Service Inc. v. WebReg, RN, WIPO Case No. D2005-1304; Asian World of Martial Arts Inc. v. Texas International Property Associates, WIPO Case No. D2007-1415; Champagne Lanson v. Development Services/MailPlanet.com, Inc., WIPO Case No. D2006-0006; The Knot, Inc. v. In Knot we Trust LTD, WIPO Case No. D2006-0340; Ustream.TV, Inc. v. Vertical Axis, Inc, WIPO Case No. D2008-0598).
As Respondent has failed to file a Response, it has not provided any evidence rebutting Complainant’s prima facie case. The Panel therefore concludes that Respondent has no rights to or legitimate interests in the disputed domain names.
C. Registered or Used in Bad Faith
The Panel finds it very unlikely that Respondent would have been unaware of the existence of Complainant and its well-known trademark RABOBANK when Respondent registered the disputed domain names. The fact that Respondent has registered eight (8) domain names, that are all in fact misspellings of the trademark RABOBANK of Complainant further substantiates this. In this respect reference is made to Coöperatieve Raiffeisen-Boerenleenbank B.A. (Rabobank Nederland) v. Nguyet Dang, ND Dang, WIPO Case No. DNL2010-0074, where a respondent that is located at exactly the same address as Respondent in this matter has registered seven (7) of misspellings of the trademark RABOBANK of the same Complainant.
When attempting to visit Complainant’s website, the visitor could easily be diverted to Respondent’s websites (parking pages) connected to the disputed domain names as a result of the “typosquatting” practice conducted by Respondent. This indicates that Respondent intends to take advantage of possible mistakes by Internet users when typing Complainant’s address. The act of “typosquatting” or registering a domain name that is a common misspelling of a mark in which a party has rights, has often been recognized as evidence of bad faith registration and use. Paragon Gifts, Inc. v. Domain.Contact, WIPO Case No. D2004-0107, citing National Association of Professional Baseball Leagues, Inc., d/b/a Minor League Baseball v. John Zuccarini, WIPO Case No. D2002-1011; Bang & Olufsen a/s v. Unasi Inc., WIPO Case No. D2005-0728.
Thus by using the disputed domain names for parking pages, it is very likely that Respondent attempts to attract Internet users to its websites connected to the disputed domain names, by creating a likelihood of confusion with Complainant’s trademarks as to the source, affiliation, or endorsement of Respondent’s websites.
Under these circumstances, the Panel concludes that the disputed domain names have been registered or are being used in bad faith according to article 2.1 sub c and article 3.2 sub d of the Regulations.
For all the foregoing reasons, in accordance with articles 1 and 14 of the Regulations, the Panel orders that the disputed domain names <raabobank.nl>, <rabaobank.nl>, <rabbobank.nl>, <rabobabk.nl>, <rabobamk.nl>, <rabobanl.nl>, <rabobsnk.nl> and <rabokank.nl> be transferred to Complainant.
Madeleine De Cock Buning
Dated: February 21, 2011