WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Stichting VVV Groep Nederland v. Balata.com Ltd.
Case No. DNL2012-0042
1. The Parties
The Complainant is Stichting VVV Groep Nederland of Leersum, the Netherlands, represented by Vereenigde, the Netherlands.
The Respondent is Balata.com Ltd. of Hong Kong, China.
2. The Domain Name and Registrar
The disputed domain name <vvvsintanthonis.nl> (the “Domain Name”) is registered with SIDN through EuroDNS S.A.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 15, 2012. On June 15, 2012, the Center transmitted by email to SIDN a request for registrar verification in connection with the Domain Name. On June 18, 2012, 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 June 20, 2012. In accordance with the Regulations, article 7.1, the due date for Response was July 10, 2012. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 11, 2012.
The Center appointed Willem Hoorneman as the panelist in this matter on July 26, 2012. 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 provides, as a market leader, a wide range of leisure, tourist and recreation services in the Netherlands since 1885. The product range of the Complainant includes the provision of tourist information for both Dutch and foreign residents on local, regional, national and international level.
The Complainant is holder of the following Benelux trademarks:
- the word mark V.V.V., with registration no. 157946, filed on December 15, 1987 and registered for goods and services in classes 35, 39, 41 and 42;
- the word mark VVV, with registration no. 621850, filed on June 17, 1997 and registered for goods and services in classes 16, 35, 39, 41, 42 and 43;
- the VVV device mark, with registration no. 445660, filed on May 4, 1988 and registered for goods in class 16; and
- the VVV device mark, with registration no. 158300, filed on December 15, 1987 and registered for services in classes 35, 39, 41 and 43.
These (collective) trademarks (the “Trademarks”) are being used in relation to the goods and services registered, more in particular for providing (information on) a wide range of leisure, tourist and recreation services in the Netherlands.
Furthermore, the Complainant owns the trade name rights in the sign VVV (the “Trade Name”) by means of extensive and longstanding use throughout the Netherlands.
The Complainant is also commercially active on the Internet operating a website under the domain name <vvv.nl> through which its services are also offered and advertised. In addition, various local and regional VVV-entities operate their own domain names, which all bear the element “vvv” in conjunction with the respective geographical identifier (city, village or region), such as <vvvassen.nl> or <vvvleiden.nl>.
The Domain Name was first registered on March 12, 2001. The Respondent became the current registrant of the Domain Name by new registration on November 23, 2006. The Domain Name directs to a so-called parking page.
5. Parties’ Contentions
The Complainant contends that the Domain Name is confusingly similar to its Trademarks, as the first part of the Domain Name – “vvv” – is identical to (the word element of) its Trademarks, whereas such Trademarks can be regarded as well-known (and highly distinctive) trademarks in respect of the relevant services. According to the Complainant, the second part of the Domain Name – “sintanthonis” – is merely descriptive for the geographical territory of the services, as a result of which the attention of the consumer will focus on “vvv”, creating a risk of confusion between the Trademarks and the Domain Name. Similarly, the Domain Name is also confusingly similar to the Trade Name used by the Complainant.
The Complainant claims that the Respondent has no rights to or legitimate interests in the Domain Name. According to the Complainant, there are no trademarks or trade names registered in the name of the Respondent that are identical or similar to the Domain Name.
The Complainant asserts that the Domain Name has been registered or is being used in bad faith. The Complainant claims that the Respondent must have been familiar with the Complainant and its services, and that the Respondent registered the Domain Name only in order to sell it to the highest bidder. By blocking a domain name that the Complainant would typically use to advertise services with respect to the village of Sint Anthonis, the Complainant finds its business is frustrated.
The Complainant refers to previous .nl panel decisions in its favor in similar cases, also concerning domain names consisting of the element “vvv” in conjunction with a (Dutch) geographical name.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
As the Respondent has not filed a Response, the Panel shall rule on the basis of the Complaint. In accordance with article 10.3 of the Regulations, the Complaint shall in that event be granted, unless the Panel considers it to be without basis in law or in fact.
The Panel notes that, in accordance with article 16.4 of the Regulations, the Center has fulfilled its obligation to employ reasonably available means to achieve actual notice of the Complaint to the Respondent.
Based on article 2.1 of the Regulations, a request to transfer a domain name must meet three cumulative conditions:
a) The domain name is identical or confusingly similar to a trademark or trade name protected under Dutch law in which the complainant has rights, or other name by means of article 2.1(a) under II of the Regulations; and
b) The respondent has no rights to or legitimate interests in the domain name; and
c) The domain name has been registered or is being used in bad faith.
Considering these conditions, the Panel rules as follows:
A. Identical or Confusingly Similar
The Complainant has based its Complaint on the Trademarks and has submitted copies of its Benelux trademark registrations demonstrating that it is the holder of the Trademarks. The Complainant has furthermore based its Complaint on its Trade Name and has submitted evidence substantiating its longstanding use thereof. Both the Trademarks and the Trade Name are protected under Dutch law.
It is established case law that the top level domain “.nl” may be disregarded in assessing the similarity between the relevant trademark or trade name on the one hand, and the domain name on the other hand (see: Taylor Made Golf Company, Inc. v. Lotom Group S.A., WIPO Case No. DNL2010-0067; Roompot Recreatie Beheer B.V. v. Edoco LTD, WIPO Case No. DNL2008-0008).
The first element in the Domain Name – “vvv” – is the most dominant and distinctive element and this element is identical to (the word element of) the Complainant’s (well-known) Trademarks and Trade Name. The second element in the Domain Name – “sintanthonis” – is non-distinctive and merely descriptive as this is the name of a Dutch village (Sint Anthonis). In this respect, reference is made to a number of previous .nl panel decisions also concerning domain names consisting of the element “vvv” in conjunction with a geographical indication (see: VVV Groep Nederland v. Heusdens Buro voor Toerisme (voorheen Stichting V.V.V. Heusden en Omstreken), WIPO Case No. DNL2011-0027; VVV Groep Nederland v. VRTBO, WIPO Case No. DNL2011-0013; VVV Groep Nederland v. Amstel Meer Land B.V., WIPO Case No. DNL2009-0031; VVV Groep Nederland v. M.J. Loverbosch-Jansen, WIPO Case No. DNL2009-0026; VVV Groep Nederland v. C. Henriquez, WIPO Case No. DNL2008-0040; and VVV Groep Nederland v. C. Henriquez, WIPO Case No. WIPO2007NL21).
Therefore, the Panel finds that the Domain Name is confusingly similar to the Complainant’s Trademarks and Trade Name.
B. Rights or Legitimate Interests
The Panel finds that the Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the Domain Name. As a result of its failure to submit a Response, the Respondent did not use the opportunity to show rights to or legitimate interests in the Domain Name. It may be assumed that the Respondent was and is not commonly known by the Domain Name. The record does not include any indication that the Respondent has any relevant trademark or trade name rights regarding the term “VVV” or “VVV Sint Anthonis”.
The Domain Name links to a parking page that appears to contain various links and references to other (commercial) websites. It is established case law that such parking pages built around a third party’s trademark or trade name as a rule do not constitute a bona fide offering of goods or services, nor do they constitute a legitimate noncommercial use of a trademark or trade name (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; and Coöperatieve Raiffeisen-Boerenleenbank B.A. (Rabobank Nederland) v. Nguyet Dang, ND Dang, WIPO Case No. DNL2010-0074). In the present case, the Panel notes that the sponsored links on the parking page also cover the area of leisure, tourist and recreation services.
Based on the foregoing, the Panel concludes that the Respondent has no rights to or legitimate interests in the Domain Name.
C. Registered or Used in Bad Faith
The registration of the Complainant’s Trademarks and the use of its Trade Name predate the registration and use of the Domain Name by the Respondent by many years. As the Complainant owns trademark and trade name rights effective and enforceable in the Netherlands and is located and actively runs its business in the Netherlands, while the Domain Name is in the “.nl” domain and the parking page linked to it, which contains sponsored links in the same area of business, is in the Dutch language, indicating that it is directed at users in the Netherlands, the Panel deems it highly likely that registration of the Domain Name took place while being aware of the Complainant’s Trademarks and/or Trade Name. Even in the absence of any such positive awareness, in the circumstances of this case it would have been incumbent on the Respondent to examine the rights position in relation to this Domain Name.
Considering also that the parking page of the Respondent contains various links to other (commercial) websites offering recreation and tourist services, the Panel finds that the Domain Name is being used by the Respondent for commercial gain, by intentionally attracting Internet users to its website where services similar to those of the Complainant are being advertised, through the likelihood of confusion with the Complainant’s Trademarks and Trade Name as to the source, sponsorship, affiliation or endorsement of the Respondent’s website. This constitutes evidence of bad faith registration and use in accordance with article 3.2(d) of the Regulations (see: Seiko EPSON Corporation v. ANEM Computers / ANEM, WIPO Case No. DNL2010-0024; and Taylor Made Golf Company, Inc. v. Lotom Group S.A., WIPO Case No. DNL2010-0067). The Panel further notes that the Domain Name is offered for sale on the parking page to which it resolves.
Having refrained from submitting a Response, the Respondent has failed to provide any evidence to the contrary. On the above grounds, the Panel finds that the requirements of registration or use in bad faith of the Domain Name pursuant to article 2.1(c) of the Regulations have been met.
For all the foregoing reasons, in accordance with articles 1 and 14 of the Regulations, the Panel orders that the Domain Name <vvvsintanthonis.nl> be transferred to the Complainant.
Dated: August 23, 2012