WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Antargaz v. R.J. van Hulsbergen, PropaanCollectief.nl B.V
Case No. D2021-0395
1. The Parties
Complainant is Antargaz, France, represented by Cabinet Degret, France.
Respondent is R.J. van Hulsbergen, PropaanCollectief.nl B.V, Netherlands.
2. The Domain Name and Registrar
The disputed domain name <antargas.com> (the “Domain Name”) is registered with Realtime Register B.V. (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 9, 2021. On February 9, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On February 12, 2021, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name, which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on February 12, 2021, providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amendment to the Complaint on February 16, 2021.
The Center verified that the Complaint together with the amendment to 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 and 4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on February 17, 2021. In accordance with the Rules, paragraph 5, the due date for Response was March 9, 2021.
Respondent sent various informal communications to the Center on February 24, 2021, and February 26, 2021. On March 16, 2021, the Center suspended the proceedings for 30 days further to the suspension request received from Complainant on March 2, 2021.
On April 19, 2021, Complainant informed the Center that no agreement was found with Respondent and the Center reinstituted the proceedings on April 19, 2021, and reminded the Parties that the new due date for submission of Respondent’s Response was April 26, 2021. Respondent did not submit any formal response and the Center started the Commencement of Panel Appointment Process on April 27, 2021.
The Center appointed Marina Perraki as the sole panelist in this matter on May 4, 2021. 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
Per Complaint, Complainant is a 32 year old company and Complainant’s group is active since 1951. It offers gas solutions to all types of customers (private or professional), for all uses (heating, cooking, hot water, industrial process) as well as a large range of gas network solutions. Per Complainant, it has become one of the French leaders in the butane and propane gas market and a significant player in the natural gas market. Per Complaint, income before tax of Complainant between 2010 and 2019 went from around EUR 70 million up to EUR 175 million. Furthermore, a brand study conducted in 2014 showed that Complainant is one of the most reputed gas brands among the French public. Complainant has 1,200 employees, with 700 stations that distribute its fuel and 15,000 points distributing its gas cylinders, while 900,000 tonnes of LPG are distributed through France per year.
Complainant is the owner of ANTARGAZ trademark registrations, including:
- European Union Trade Mark registration No. 002618775, ANTARGAZ , filed on March 15, 2002, registered on June 30, 2003, for goods in international classes 01, 04, 06 and 11;
- European Union Trade Mark registration No. 010511251, ANTARGAZ, filed on December 20, 2011, registered on May 18, 2012, for goods and services in international classes 09, 11, 16, 35, 36 and 42.
The Domain Name was registered on March 19, 2014 and at the time of filing of the Complaint, it redirected to the website “www.propaancollectief.nl” (the Website), which as Complainant demonstrated was operated by a company named Propaancollectief.nl B.V., which per Complaint, appeared to provide competing services and goods to those of Complainant. The email address “[…]@propaancollectief.nl” appeared as contact address in the WhoIs details of the Domain Name and also in the Website. Currently the Domain Name leads to a parking page in Dutch.
Complainant sent a cease and desist letter to Respondent on October 15, 2020 and November 3, 2020, to which Respondent did not reply. On February 24, 2021, Respondent contacted the Center and expressed his agreement to “hand over the domain name”.
5. Parties’ Contentions
Complainant asserts that it has established all three elements required under paragraph 4(a) of the Policy for the transfer of the Domain Name.
Respondent did not formally reply to Complainant’s contentions.
6. Discussion and Findings
Paragraph 4(a) of the Policy lists the three elements, which Complainant must satisfy with respect to the Domain Name:
(i) the Domain Name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) the Domain Name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
Complainant has demonstrated rights through registration and use on the ANTARGAZ mark.
The Panel finds that the Domain Name is confusingly similar with the ANTARGAZ trademark of Complainant.
The Domain Name incorporates the said trademark of Complainant in its entirety with the sole difference of the last letter “s” instead of “z”. This is sufficient to establish confusing similarity (Magnum Piering, Inc. v. The Mudjackers and Garwood S. Wilson, Sr., WIPO Case No. D2000-1525).
The change of the letter “s” instead of “z” in the Domain Name, both of which are pronounced in a similar way, does not prevent a finding of confusing similarity as the ANTARGAZ mark remains clearly recognizable (WIPO Overview 3.0 of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.8).
The generic Top-Level Domain (“gTLD”) “.com” is also disregarded, as gTLDs typically do not form part of the comparison on the grounds that they are required for technical reasons only (Rexel Developpements SAS v. Zhan Yequn, WIPO Case No. D2017-0275).
The Panel finds that the Domain Name is confusingly similar to the ANTARGAZ trademark of Complainant.
Complainant has established Policy, paragraph 4(a)(i).
B. Rights or Legitimate Interests
Pursuant to paragraph 4(c) of the Policy, Respondent may establish its rights or legitimate interests in the Domain Name, among other circumstances, by showing any of the following elements:
(i) before any notice to Respondent of the dispute, Respondent’s use of, or demonstrable preparations to use, the Domain Name or a name corresponding to the Domain Name in connection with a bona fide offering of goods or services; or
(ii) Respondent (as an individual, business, or other organization) has been commonly known by the Domain Name, even if Respondent has acquired no trademark or service mark rights; or
(iii) Respondent is making a legitimate noncommercial or fair use of the Domain Name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
The Panel finds that Respondent lacks rights or legitimate interests in respect of the Domain Name.
Respondent has not submitted any formal response and has not claimed any such rights or legitimate interests with respect to the Domain Name. As per Complainant, Respondent was not authorized to register the Domain Name.
Prior to the notice of the dispute, Respondent did not demonstrate any use of the Domain Name or a name corresponding to the Domain Name in connection with a bona fide offering of goods or services.
On the contrary, the Domain Name was used to redirect to the Website of Respondent offering competing goods and services. A respondent’s use of a complainant’s mark to redirect users to a competing site would not support a claim to rights or legitimate interests (WIPO Overview 3.0, section 2.5.3). It currently leads to a parking page in Dutch.
Lastly, the Panel notes the nature of the Domain Name, which carries a risk of implied affiliation (WIPO Overview 3.0, section 2.5.1) and the fact that Respondent never replied to Complainant’s warning letters.
The Panel finds that these circumstances do not confer upon Respondent any rights or legitimate interests in respect of the Domain Name.
Complainant has established Policy, paragraph 4(a)(ii).
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides that the following circumstances, “in particular but without limitation”, are evidence of the registration and use of the Domain Name in “bad faith”:
(i) circumstances indicating that Respondent has registered or has acquired the Domain Name primarily for the purpose of selling, renting, or otherwise transferring the Domain Name registration to Complainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of its documented out of pocket costs directly related to the Domain Name; or
(ii) that Respondent 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 Respondent has engaged in a pattern of such conduct; or
(iii) that Respondent has registered the Domain Name primarily for the purpose of disrupting the business of a competitor; or
(iv) that by using the Domain Name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website or other online location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on Respondent’s website or location.
The Panel concludes that Respondent has registered and used the Domain Name in bad faith. Because the ANTARGAZ mark had been used and registered at the time of the Domain Name registration by Respondent, the Panel finds that Respondent had Complainant’s mark in mind when registering the Domain Name (Tudor Games, Inc. v. Domain Hostmaster, Customer ID No. 09382953107339 dba Whois Privacy Services Pty Ltd / Domain Administrator, Vertical Axis Inc., WIPO Case No. D2014-1754; Parfums Christian Dior v. Javier Garcia Quintas and Christiandior.net, WIPO Case No. D2000-0226).
Furthermore, Respondent could have conducted a trademark search and would have found Complainant’s prior registrations in respect of the ANTARGAZ mark (Citrix Online LLC v. Ramalinga Reddy Sanikommu Venkata, WIPO Case No. D2012-1338).
The Domain Name was therefore operated by intentionally, for commercial gain, creating a likelihood of confusion with Complainant’s trademark and business as to the source, sponsorship, affiliation or endorsement of the Website it resolved to within the sense of paragraph 4(b)(iv) of the Policy. This can be used in support of bad faith registration and use (WIPO Overview 3.0, section 3.1.3).
As regards bad faith use, the Domain Name at the time of filing of the Complaint redirected to the Website offering competing goods and services of Respondent and currently leads to a parking page. Redirecting the domain name to a different respondent-owned website also supports a finding that a respondent has registered a domain name to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the complainant’s mark (WIPO Overview, section 3.1.4). Regarding the current use of the Domain Name, the Panel notes that the non-use of a domain name does not prevent a finding of bad faith (see Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003; WIPO Overview 3.0, section 3.3). Lastly, the Panel notes that Respondent did not reply to the warning letters of Complainant.
Under these circumstances and on this record, the Panel finds that Respondent has registered and used the Domain Name in bad faith.
Complainant has established Policy, paragraph 4(a)(iii).
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name <antargas.com> be transferred to Complainant.
Date: May 18, 2021