WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
BEV.CON ApS v. TR-Group
Case No. DNL2011-0050
1. The Parties
The Complainant is BEV.CON ApS of Vejle, Denmark, represented by Delacour Dania Law Firm, Denmark.
The Respondent is TR-Group of Tegelen, The Netherlands.
2. The Domain Name and Registrar
The disputed domain name <cult.nl> (the “Domain Name”) is registered with SIDN through XL Internet Services B.V.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 13, 2011. On July 13, 2011, the Center transmitted by email to SIDN a request for registrar verification in connection with the Domain Name. On July 14, 2011, SIDN 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 Dispute Resolution Regulations for .nl Domain Names (the “Regulations”).
In accordance with the Regulations, articles 5.1 and 16.4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on July 14, 2011. In accordance with the Regulations, article 7.1, the due date for Response was August 3, 2011. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 4, 2011.
The Center appointed Alfred Meijboom as the panelist in this matter on August 12, 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.
4. Factual Background
The Complainant is the owner of Community Trademark CULT, Registration No. 001089481, for energy drinks, which was filed on February 26, 1999, and registered on May 15, 2002 (the “Trademark”).
The Domain Name was first registered on June 17, 1999. The Domain Name has been registered in the name of the Respondent since May 30, 2008, through a change of ownership. Until recently the Domain Name redirected Internet users to the website of the Dutch company R&B Beverages B.V. (“R&B”).
5. Parties’ Contentions
The Complainant is a company of the CULT group of companies who are a leading manufacturer of energy drinks in the European Union. The Respondent is assumed to be the managing director of R&B which had been the exclusive distributor of CULT energy drinks for The Netherlands as from July 2007 on the basis of a written distribution agreement between the Complainant’s affiliated company and R&B (the “Distribution Agreement”). The Distribution Agreement was terminated in 2010 and R&B was not allowed to use the Trademark after 2010.
The Respondent acquired the Domain Name when R&B was the exclusive distributor for CULT energy drinks and R&B used the Domain Name to promote the CULT energy drinks in The Netherlands in accordance with the Distribution Agreement. After the termination of the Distribution Agreement the Domain Name redirected Internet users to the website of R&B with products that compete with the energy drinks under the Trademark. The Complainant sent the Respondent a cease and desist letter on May 5, 2011, asking the Respondent to transfer the Domain Name to the Complainant. In a telephone discussion on May 23, 2011, between the Complainant’s representative and the Respondent, the Respondent was only willing to transfer the Domain Name to the Complainant against payment of a large amount, which the Complainant refused.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Language of the Proceedings
Noting that the Complainant is neither residing nor registered in The Netherlands, the Panelist determines that English is the language of proceedings pursuant to article 17.2 of the Regulations.
Grounds of the Complaint
Article 10.3 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 fact.
According to article 2.1 of the Regulations, the requested remedy shall be granted if the Complainant asserts and establishes each of the following:
(a) that the Domain Name is identical or confusingly similar to:
(i) a trademark, or trade name, protected under Dutch law in which the Complainant has rights; or
(ii) a personal name registered in the General Municipal Register (“gemeentelijke basisadministratie”) of a municipality in The Netherlands, or the name of a Dutch public legal entity or the name of an association or foundation registered in The Netherlands under which the Complainant undertakes public activities on a permanent basis; and
(b) that the 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.
A. Identical or Confusingly Similar
The Complainant has rights in the Trademark, which is protected under Dutch law and valid in The Netherlands. For the purpose of assessing whether the Domain Name is identical or confusingly similar to the Trademark the “.nl” suffix is disregarded, it being a necessary component for registration of a domain name (e.g., Roompot Recreatie Beheer B.V. v. Edoco LTD, WIPO Case No. DNL2008-0008).
The Panelist finds that the Domain Name is identical to the Trademark.
B. Rights or Legitimate Interests
According to article 2.1 (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 the Complainant makes a prima facie case that the Respondent has no rights or legitimate interests, and the Respondent fails to rebut that showing, by, for example, providing evidence of one of the three circumstances mentioned in article 3.1 of the Regulations (e.g., Technische Unie B.V. and Otra Information Services v. Technology Services Ltd, WIPO Case No. DNL2008-0002 and LEGO Juris A/S v. M. Moench, WIPO Case No. DNL2009-0052).
It appears that after the termination of the Distribution Agreement, R&B no longer had the right to use the Trademark to promote CULT energy drinks. As the Domain Name had been used by R&B to promote CULT energy drinks and in absence of any indication that the Respondent had rights to or legitimate interests in the Domain Name of its own, the Panel is satisfied that the Complainant has made a prima facie case that the Respondent has no rights to or legitimate interests in the Domain Name.
C. Registered or Used in Bad Faith
Pursuant to article 2.1 (c) of the Regulations, the Complainant must assert and establish that the Domain Name has been registered or is being used in bad faith.
The Complainant showed that, after termination of the Distribution Agreement, the Respondent started using the Domain Name for commercial gain by attracting Internet users to the website of R&B with products that compete with those of the Complainant’s group of companies, while being fully aware of the Trademark.
Furthermore, the Respondent has not denied that it is only prepared to transfer the Domain Name to the Complainant for valuable consideration in excess of the cost of registration, which under the circumstances of the case constitutes use of bad faith in itself.
Therefore, the Complainant has also satisfied article 2.1 (c) of the Regulations.
For all the foregoing reasons, in accordance with articles 1 and 14 of the Regulations, the Panel orders that the Domain Name <cult.nl> be transferred to the Complainant.
Dated: August 19, 2011