WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Cruisewinkel.nl B.V. v. Meier Gunter
Case No. DNL2016-0025
1. The Parties
Complainant is Cruisewinkel.nl B.V. of Amsterdam, the Netherlands, represented by Bruggink & Van der Velden Advocaten, the Netherlands.
Respondent is Meier Gunter of Wittlich, Germany.
2. The Domain Name and Registrar
The disputed domain name <cruiswinkel.nl> (hereafter 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 May 30, 2016. On May 30, 2016, the Center transmitted by email to SIDN a request for registrar verification in connection with the Domain Name. On May 31, 2016, SIDN transmitted by email to the Center its verification response confirming that 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 Respondent of the Complaint, and the proceedings commenced on June 2, 2016. In accordance with the Regulations, article 7.1, the due date for Response was June 22, 2016. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on June 23, 2016.
The Center appointed Dinant T. L. Oosterbaan as the panelist in this matter on July 1, 2016. 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
According to the information submitted by Complainant, including an abstract of its registration with the trade register (in Dutch: handelsregister), Complainant has rights to the trade names "CRUISEWINKEL" and "Cruisewinkel.nl B.V.". Complainant submits that its parent company owns the Benelux trademark CRUISEWINKEL.NL with number 1158248 with a registration date of April 24, 2008. In addition Complainant uses the domain name <cruisewinkel.nl>. Complainant operates as a travel agency especially with respect to cruises.
The Domain Name, <cruiswinkel.nl>, was registered by Respondent on August 27, 2010. The Domain Name resolves to a website displaying pay-per-click links to third-party websites.
5. Parties' Contentions
Complainant submits that the Domain Name is confusingly similar to the CRUISEWINKEL trademark and tradename as it contains the CRUISEWINKEL trade name and trademark in its entirety without the letter "e".
According to Complainant, in view of Complainant's trade name and trademark, Respondent has no rights to or legitimate interests in respect of the Domain Name. Internet users are directed to a website which is a (parking) page displaying pay-per-click links to other websites. Respondent uses the Domain Name without permission from Complainant for commercial gain.
Complainant submits that Respondent is using the Domain Name in bad faith as Respondent suspects that this is a case of domain name grabbing or cybersquatting.
Respondent did not reply to Complainant's contentions.
6. Discussion and Findings
Based on article 2.1 of the Regulations, a claim 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 mentioned in 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.
As 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.
A. Identical or Confusingly Similar
Pursuant to article 2.1(a) of the Regulations, Complainant must establish that the Domain Name is identical or confusingly similar to a trademark or trade name in which Complainant has rights.
Complainant has established that it has rights to the trade name CRUISEWINKEL. The Domain Name incorporates the entirety of the CRUISEWINKEL trade name, except for the letter "e" of the trade name, which letter has been omitted. The Top-Level Domain ".nl" may be disregarded for purposes of article 2.1(a) of the Regulations. The Panel finds that the Domain Name is an obvious misspelling of Complainant's trade name. Numerous other .nl panels have found that a domain name consisting of a misspelled trademark or trade name is in principle confusingly similar to that mark for purposes of the Regulations (see, e.g., Coöperatieve Raiffeisen-Boerenleenbank B.A. (Rabobank Nederland) v. Nguyet Dang, ND Dang, WIPO Case No. DNL2010-0074).
Complainant has not argued nor submitted any evidence that Complainant has a license or other rights to the trademark which has been registered by its parent company. In any event, in light of its above findings concerning the trade name, the Panel need not further address this aspect of the Complaint.
The Panel finds that the Domain Name is confusingly similar to Complainant's CRUISEWINKEL trade name.
B. Rights or Legitimate Interests
In the Panel's opinion, Complainant has made a prima facie case that Respondent lacks rights to or legitimate interests in the Domain Name. This is particularly true as Respondent is not making a legitimate noncommercial or fair use of the Domain Name without intent for commercial gain to misleadingly divert consumers or to tarnish the trade name of Complainant. Based on the evidence provided by Complainant, it appears that by using the Domain Name, Respondent diverts Internet users to a website which is a pay‑per‑click site in the Dutch and German language featuring links to various commercial websites offering cruises. Respondent makes use of the value of the CRUISEWINKEL trade name and the confusing similarity with the trade name of Complainant, which cannot be considered a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the Domain Name. Furthermore, on the basis of the record, the Panel finds that Respondent is not commonly known by the Domain Name nor has Respondent acquired trademark or other rights corresponding to the Domain Name.
Under these circumstances the Panel finds that Respondent has no rights to or legitimate interests in the Domain Name.
C. Registered or Used in Bad Faith
The Panel finds that the Domain Name has been registered and is being used in bad faith. The CRUISEWINKEL trade name was first used by Complainant in early 2009. This date is before the registration of the Domain Name by Respondent. Considering also the distinctiveness of Complainant's trade name, the Panel finds that Respondent knew or should have known of Complainant's rights. This is all the more so where the Domain Name is included with what must have been a deliberate misspelling of Complainant's trade name.
Further, Respondent uses the Domain Name for a website displaying pay-per-click links. On this basis, the Panel finds that Respondent intentionally attempts to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the trade name of Complainant as to the source, sponsorship, affiliation, or endorsement of its website, which constitutes registration and use in bad faith pursuant to article 3.2(d) of the Regulations. The Panel further notes that on the website to which the Domain Name resolves the Domain Name is prominently offered for sale.
This finding is not affected by any delay in filing the Complaint. Remedies under the Regulations are injunctive and the purpose is to avoid ongoing or future confusion as to the source of communications, goods or services.
For all the foregoing reasons, in accordance with articles 1 and 14 of the Regulations, the Panel orders that the Domain Name, <cruiswinkel.nl>, be transferred to Complainant.
Dinant T. L. Oosterbaan
Date: July 8, 2016