WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Koole Tanktransport B.V. v. Domains By Proxy, LLC / Export Department
Case No. DNL2016-0034
1. The Parties
Complainant is Koole Tanktransport B.V. of Zaandam, the Netherlands, internally represented.
Respondent is Domains By Proxy, LLC of Scottsdale, Arizona, United States of America ("United States") / Export Department of Moscow, Russian Federation.
2. The Domain Name and Registrar
The disputed domain name <koole-terminals.nl> (hereafter the "Domain Name") is registered with SIDN through GoDaddy.com (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on June 23, 2016. On June 27, 2016, the Center transmitted by email to SIDN a request for registrar verification in connection with the Domain Name. On June 28, 2016, SIDN transmitted by email to the Center its verification response confirming that Respondent Domains By Proxy, LLC is listed as the registrant of the Domain Name and providing the contact details. In reply to the Center's request for further verification, on June 28, 2016, the Registrar transmitted by email to the Center its 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 June 29, 2016 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on July 1, 2016.
The Center verified that the Complaint together with the amended 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 July 4, 2016. In accordance with the Regulations, article 7.1, the due date for Response was July 24, 2016. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on July 25, 2016.
The Center appointed Dinant T. L. Oosterbaan as the panelist in this matter on July 29, 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 extract of its registration with the trade register (in Dutch: "handelsregister"), Complainant has rights to the trade names KOOLE and KOOLE TERMINALS. In addition Complainant uses the domain name <koole.com>. Complainant was founded in 1984 and is an international storage and transport company providing logistics solutions for various oils and non-hazardous chemicals.
The Domain Name <koole-terminals.nl> was registered by Respondent on May 28, 2016. The Domain Name resolves to a website which is an exact copy of the website of Complainant except for the telephone numbers and email address mentioned on the contact page.
5. Parties' Contentions
Complainant submits that the Domain Name is identical and confusingly similar to the KOOLE and KOOLE TERMINALS trade names as it contains the KOOLE and KOOLE TERMINALS trade names in its entirety.
According to Complainant, in view of Complainant's trade names, Respondent has no rights to or legitimate interests in respect of the Domain Name. Complainant submits that Respondent has no agreement with Complainant for copying Complainant's "www.koole.com" website in its entirety. Respondent does not entertain any activity in the terminal market/bulk storage industry. 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 Complainant suspects that Respondent uses the Domain Name to swindle potential clients of Complainant. According to Complainant, by requesting information using the email address mentioned on the website to which the Domain Name resolves, several sales documents and contracts in the name of Complainant are returned. Complainant asserts that the website of Respondent is a hoax website. Complainant reported the fraudulent activity to the Dutch police authorities.
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 names KOOLE and KOOLE TERMINALS. The Domain Name incorporates the entirety of the KOOLE TERMINALS trade name, except for addition of the hyphen and the deletion of the space between the two words of the trade name, both of which may be disregarded. In addition, the Panel finds that the Domain Name is confusing similar to the KOOLE trade name as the word "terminals" is descriptive which can be disregarded. The country code Top-Level Domain ("ccTLD") ".nl" may also be disregarded for purposes of article 2.1(a) of the Regulations.
The Panel finds that the Domain Name is identical to Complainant's KOOLE TERINALS trade name and confusingly similar to Complainant's KOOLE 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 names of Complainant. Based on the evidence provided by Complainant, it appears that by using the Domain Name, Respondent obviously intends to defraud Internet users by copying the entire website of Complainant without authorization. Respondent makes use of the value of the trade names and the identical and confusing similarity with the trade names 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, trade name or other rights corresponding to the Domain Name, but rather appears to be impersonating Complainant.
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 Panel accepts Complainant's undisputed submission that bad faith registration and use of the Domain Name is indicated by the fact that there is strong suspicion of Respondent using the Domain Name in an elaborate attempt at fraudulent action by copying the entire website of Complainant and by using various documents and contracts of Complainant without authorization. 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 names 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.
For all the foregoing reasons, in accordance with articles 1 and 14 of the Regulations, the Panel orders that the Domain Name, <koole-terminals.nl>, be transferred to Complainant.
Dinant T. L. Oosterbaan
Date: August 4, 2016