WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Rijkswaterstaat v. Yorkshire Enterprises Limited
Case No. DNL2017-0018
1. The Parties
The Complainant is Rijkswaterstaat of Delft, the Netherlands, internally represented.
The Respondent is Yorkshire Enterprises Limited of St. Johns, Antigua and Barbuda.
2. The Domain Name and Registrar
The disputed domain name <rijkwaterstaat.nl> is registered with SIDN through Sombrero.de Gmbh.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on March 16, 2017. On the same date, the Center transmitted by email to SIDN a request for registrar verification in connection with the disputed domain name. On March 17, 2017, 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 March 21, 2017. In accordance with the Regulations, article 7.1, the due date for Response was April 10, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on April 11, 2017.
The Center appointed Hub J. Harmeling as the panelist in this matter on April 27, 2017. 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
Information about the Complainant is drawn from the Complaint.
The Complainant is a governmental organization in the Netherlands and a department and/or agency of the public legal entity of the Dutch state. It is responsible for the execution of public works and water management, including the construction and maintenance of waterways and roads. The agency operates and is known to the general public under the name "Rijkswaterstaat" and is part of the Dutch Ministry of Infrastructure and the Environment.
The Complainant has an Internet presence through its website at the domain name <rijkswaterstaat.nl>, registered since March 25, 2000.
The dispute concerns the domain name <rijkwaterstaat.nl> registered by the Respondent on December 16, 2013 (the "Disputed Domain Name"). The Disputed Domain Name resolves to a pay-per-click parking page with links, some of which target the Complainant.
No information has been presented to the Panel about the Respondent.
5. Parties' Contentions
The Complainant's contentions include the following.
The Complainant contends that the Disputed Domain Name is confusingly similar to the name of its organization. The Respondent has, according to the Complainant, no rights or legitimate interests in respect of the Disputed Domain Name. The Complainant further contends that the Disputed Domain Name has been registered and is being used in bad faith.
The Complainant has cited a number of previous decisions in which the Respondent was involved under the Uniform Domain Name Dispute Resolution Policy ("UDRP") that it considers to be supportive of this case.
The Complainant requests the transfer to it of the Disputed Domain Name.
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
Article 2.1 of the Regulations states that complaints may be submitted by any party which asserts and establishes that:
(a) a 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) the registrant 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.
The Complainant has made the relevant assertions as to the above. The dispute is properly within the scope of the Regulations and the Panel has jurisdiction to decide the dispute.
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 panel considers it to be without basis in law or fact.
In the exercise of its power to undertake limited factual enquiries into matters of public record (WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0"), paragraph 4.5),1 the Panel has visited the website to which the Disputed Domain Name provides access.
A. Identical or Confusingly Similar
The Disputed Domain Name is <rijkwaterstaat.nl>. The Top-Level Domain ("TLD") designation of the disputed domain names may generally be disregarded in the consideration of confusing similarity under the Regulations, and what remains of the Disputed Domain Name is "rijkwaterstaat". The Complainant seeks to prove that the Disputed Domain Name is confusingly similar to the name of the Complainant.
Under the Regulations, the name of a Dutch public legal entity (or in the Dutch version of the Regulations: "een naam van een Nederlandse publiekrechtelijke rechtspersoon") is protected. Rijkswaterstaat is part of the Dutch public legal entity "the state", which encompasses all departments, governmental functions (including the parliament and government) and governmental agencies. The state operates under multiple names in respect of these different departments and agencies, which are thus recognizable and identifiable to the Dutch public.
As provided for in article 2.1 of the Regulations, and in line with its purpose, the Complainant may rely on its generally known name to demand protection under the Regulation.
The Panel finds that the Disputed Domain Name and the name "Rijkswaterstaat" are confusingly similar. The only difference between them is the absence of the letter "s" in the Disputed Domain Name. Numerous panels have found similarity to be present in the case of a deliberate misspelling of a mark (so-called "typo-squatting"), by adding, deleting substituting or reversing the order of letters in a mark. See, Fuji Photo Film U.S.A., Inc. v. LaPorte Holdings, WIPO Case No. D2004-0971; and LouisVuitton v. Net-Promotion, WIPO Case No. D2000-0430).
The Panel finds that the Disputed Domain Name is confusingly similar to the name Rijkswaterstaat for the purposes of article 2.1 (a) of the Regulations.
B. Rights or Legitimate Interests
The Complainant contends that the Respondent does not have rights or legitimate interests in respect of the Disputed Domain Name.
As evidenced by previous decisions under the Regulations and the UDRP, the Complainant has to demonstrate prima facie that the Respondent does not have rights or legitimate interests in respect of the Disputed Domain Name (WIPO Overview 2.0, paragraph 2.1).
Once the Panel is satisfied that this is indeed the case, the burden of production shifts to the Respondent to come forward with appropriate allegations or evidence demonstrating rights or legitimate interests in the Disputed Domain Name. The Respondent may demonstrate such rights or legitimate interests on its part inter alia through the following circumstances listed in article 3.1 of the Regulations:
(a) before having any notice of the dispute, the registrant made 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;
(b) the registrant as an individual, business or other organization is commonly known by the domain name;
(c) the registrant is making a legitimate noncommercial use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish or otherwise damage the relevant trademark, trade name, personal name, name of a Dutch public legal entity or name of an association or foundation located in the Netherlands.
The Respondent did not provide information as to its interests in using the Disputed Domain Name.
The Respondent has never been authorized to use any name that is identical or similar to the Complainant's name. Moreover, the Respondent is not commonly known by the Disputed Domain Name. As the Complainant contends, the WhoIs information identifies the Registrant as "Yorkshire Enterprises Limited" which does not resemble the Disputed Domain Name in any manner.
In addition, the website operating at the Disputed Domain Name offers sponsored links on its website. In this light, the Respondent's use of the Disputed Domain Name appears to be commercial and cannot be considered as legitimate, noncommercial use.
In view of its above findings, the Panel concludes that the Complainant has prima facie demonstrated that the Respondent does not have rights or legitimate interests in respect of the Disputed Domain Name for the purposes of article 2.1(b) of the Regulations, and the Respondent has not rebutted the Complainant's case.
C. Registered or Used in Bad Faith
Paragraph 3.2 of the Regulations sets out four non-exclusive circumstances any of which, if found by the Panel, shall be evidence of registration and use of a domain name in bad faith.
In particular, paragraph 3.2(d) of the Regulations states that if the panel finds that the domain name has been or is being used for commercial gain, by attracting Internet users to a website of the registrant or other online location through the likelihood of confusion which may arise with the trademark, trade name, personal name, name of a Dutch public legal entity or name of an association or foundation registered in the Netherlands as to, for example, the source, sponsorship, affiliation or endorsement of the website of the registrant or other online location(s) or of products or services on the registrant's website or another online location, it should be taken as evidence that a domain name has been registered or is being used in bad faith.
The Panel finds that the evidence submitted by the Complainant supports a finding of bad faith under paragraph 3.2(d) of the Regulations. The Respondent's use of the Disputed Domain Name attracting Internet users for commercial gain is established by the sponsored links and pop-up advertisements on its website.
The likelihood of confusion as to source, sponsorship, affiliation or endorsement is established by the fact that the Disputed Domain Name is confusingly similar to the Complainant's own name. The fact that the website at the Disputed Domain Name includes links to websites that offer similar activities (on a commercial basis) with the Complainant's activities (as a governmental agency) aggravates the likelihood of confusion.
Furthermore the Respondent has been involved in a number of other domain name dispute proceedings as a respondent to similar typo-squatting complaints and in all of those cases the relevant domain names have been transferred to the respective complainants. See, e.g., BHP Billiton Innovation Pty. Ltd. Yorkshire Enterprises Ltd. and Whois Privacy Services Pty Ltd, WIPO Case No. D2009-1558; BHP Billiton Innovation Pty. Ltd. Yorkshire Enterprises Ltd., WIPO Case No. D2008-1937; Reebok International Limited v. Yorkshire Enterprises Limited, WIPO Case. No. D2008-1839.
Thus, the Panel concludes that the Complainant has established the third element of the Regulations.
For all the foregoing reasons, in accordance with articles 1 and 14 of the Regulations, the Panel orders that the Disputed Domain Name, <rijkwaterstaat.nl>, be transferred to the Complainant.
Hub J. Harmeling
Date: May 17, 2017
1 While the Complaint is brought under the Regulations and not the UDRP, given the similarities between the two, where applicable the Panel considers UDRP precedent relevant to the current proceeding, and will refer to it where appropriate.