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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Kieskeurig B.V. v. P. de Vries

Case No. D2008-0432

 

1. The Parties

The Complainant is Kieskeurig B.V., Culemborg, the Netherlands, represented by Brinkhof Advocaten, the Netherlands.

The Respondent is P. de Vries, Delft, the Netherlands. The Respondent is not represented in these proceedings.

 

2. The Domain Name and Registrar

The disputed domain name <kieskeurig.mobi> (the “Domain Name”) is registered with Key-Systems GmbH dba domaindiscount24.com.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) by email on March 19, 2008 and in hard copy on April 2, 2008. On March 20, 2008, the Center transmitted by email to Key-Systems GmbH dba domaindiscount24.com a request for registrar verification in connection with the domain name at issue. On March 21, 2008, Key-Systems GmbH dba domaindiscount24.com 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 Uniform Domain Name Dispute Resolution Policy (the “Policy”), 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on April 4, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was April 24, 2008. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 25, 2008.

The Center appointed Madeleine De Cock Buning as the sole panelist in this matter on May 8, 2008. 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

According to the whois record, provided by the Registrar on March 21, 2008, the Domain Name <kieskeurig.mobi> has been registered on September 27, 2006. The domain record was last updated on March 21, 2008. The Registrar has confirmed that the Respondent is the holder of the Domain Name.

The Complaint operates online a compare guide created for and by consumers. The Complainant relies on the following trademark registrations, evidence of which was provided as annex 5 to the Complaint (together the “Trademarks”):

- the Benelux word mark KIESKEURIG, filed on October 10, 2005, registered under number 776409 for goods and services in classes 9, 35, 38 and 42; and

- the Benelux figurative mark KIESKEURIG, filed on January 27, 2000, registered under number 676126 for goods and services in classes 9, 35 and 42.

 

5. Parties’ Contentions

A. Complainant

The contentions of the Complainant are as follows:

The Complainant contends it has gained substantial fame and reputation with the Trademarks. To substantiate this claim, various statistics from the Stichting Internet Reclame and Checkit/RM Interactive, as well as a list of newspaper clippings, were provided. Furthermore, the Complainant was chosen as the best comparison site for consumers of the Netherlands in 2007.

The Domain Name was registered on September 27, 2006 by the Respondent. Traffic to the Domain Name is redirected to a domain name that was still available for registration. This free domain name was immediately registered by the Complainant, so that it is able to further redirect traffic to its website at “www.kieskeurig.nl” to prevent further damage. However, the Respondent could at any time redirect the traffic to the Domain Name to any other website.

On November 5, 2007, the Complainant sent an e-mail to the Respondent, requesting it to transfer the Domain Name to the Complainant and offering to reimburse the registration costs. No reaction was received from the Respondent.

Identical or Confusingly Similar

The Complainant contends the Domain Name is identical or confusingly similar to its Trademarks.

The Complainant is the holder of the Trademarks, which are distinctive for the services of the Complainant. The Domain Name incorporates the complete trademark, only adding the generic domain extension “.mobi”. Therefore, the Domain Name is identical or confusingly similar to the Trademarks.

Rights or Legitimate Interests

The Complainant contends that the Respondent has no rights or legitimate interests in respect of the Domain Name.

To support this contention, the Complainant states that there is no evidence:

- of the 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;

- of the Respondent to have been commonly known by the domain name; or

- of the Respondent 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.

Because the Trademarks have gained substantial fame and reputation, the Respondent is likely to have had the Trademarks in mind when registering the Domain Name.

Furthermore, the Respondent has not replied to the Complainant’s email dated November 5, 2007, in which the Complainant requested the Respondent to transfer the Domain Name to the Complainant and offered to reimburse the registration costs.

Registered and Used in Bad Faith

The Complainant contends that the Domain Name is registered and used in bad faith.

The Complainant supports this claim stating:

- there is no evidence of any prior or present active use of the Domain Name by the Respondent;

- the Trademarks are well-known trademarks with a high reputation;

- the Respondent is very likely to have had the Trademarks in mind when registering the Domain Name;

- the Respondent did not give any reaction;

- it is not possible to conceive a good faith use of the Domain Name; and

- the Respondent prevents the Complainant from reflecting the Trademarks in a corresponding domain name.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

 

6. Discussion and Findings

The Respondent was given notice of these proceedings in accordance with the Rules. The Center discharged its responsibility under paragraph 2(a) of the Rules to employ reasonably available means calculated to achieve actual notice to the Respondent of the Complaint.

However, the Respondent failed to file a reply to the Complaint. The Panel finds that the Respondent has been given a fair opportunity to present its case.

Pursuant to paragraph 15(a) of the Rules, the Panel shall decide the Complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law it deems applicable. Moreover, in accordance with paragraph 14(b) of the Rules, the Panel may draw such inferences as it considers appropriate from the Respondent’s failure to reply to the Complainant’s assertions and evidence. In those circumstances, the Panel’s decision may be based upon the Complainant’s assertion and evidence.

The Respondent’s default, however, does not automatically result in a decision in favour of the Complainant. The Complainant must still prove the elements required by paragraph 4(a) of the Policy, which stipulate that, in order to succeed in these proceedings and obtain the transfer of the Domain Name, the Complainant must prove that each of the following elements are satisfied:

(i) the Domain Name is identical or confusingly similar to the Trademarks;

(ii) the Respondent has no rights to or legitimate interests in the Domain Name; and

(iii) the Domain Name has been registered and is used in bad faith.

A. Identical or Confusingly Similar

The Policy requires that the Domain Name is “identical or confusingly similar” to Complainant’s Trademarks.

The Complainant has provided sufficient proof of its rights in the Trademarks since 2000 and 2005 respectively. The Domain Name <kieskeurig.mobi> is identical to the Trademarks.

Accordingly, the Panel is satisfied that the Complainant has met the first requirement of paragraph 4(a) of the Policy.

B. Rights or Legitimate Interests

While the overall burden of proof is on the Complainant, the element of possible rights or legitimate interests of the Respondent in the Domain names involves the Complainant establishing matters which normally are within the knowledge of the Respondent. It involves for the Complainant the often impossible task of proving a negative. This should, as correctly stated in Julian Barnes v. Old Barn Studios, WIPO Case No. D2001-0121, be approached as follows: the Complainant makes its assertion and puts forward the evidence it can muster in support (e.g. it has rights to the name, the Respondent has no rights to the name of which it is aware). Unless the allegation is manifestly misconceived, the Respondent has to demonstrate its rights to or legitimate interests in the Domain Name under paragraph 4(c) of the Policy.

According to paragraph 4(c) of the Policy, the following circumstances, if proven, demonstrate the Respondent’s rights or legitimate interests in the Domain Name:

(i) the Respondent used or demonstrably prepared to use the Domain Name or corresponding names in connection with a bona fide offering of goods or services prior to notice of the dispute;

(ii) the Respondent (as an individual, business or other organization) has been commonly known by the Domain Name, even if it has not acquired trademark rights; or

(iii) the Respondent is making a legitimate non-commercial or fair use of the Domain Name, without intent for commercial gain to misleadingly divert consumers or to tarnish the Complainant’s Trademarks.

There is no apparent legitimate justification for the Respondent’s registration and use of the Domain Name which is confusingly similar to the Trademarks. As indicated above, the Complainant has made the relevant assertions on the absence of any rights or legitimate interests in the Domain Name on the part of the Respondent. In these circumstances, where the Complainant has made a prima facie case, it is up to the Respondent to negate those assertions by providing evidence to the contrary. In the absence of a Response, the Panel in deciding on this point, therefore relies on the Complainant’s assertions to this effect. Based on the record and in the absence of a rebuttal by the Respondent, the Panel finds the second element of the Policy established.

Registered and Used in Bad Faith

Paragraph 4(a)(iii) of the Policy requires Complainant to show, on the balance of probabilities, that Respondent registered and is using the Domain Name in bad faith.

For the purposes of paragraph 4(a)(iii) of the Policy, several circumstances are listed in paragraph 4(b) of the Policy, that may establish registration and use of a domain name in bad faith. These circumstances are explicitly listed without limitation. Also other circumstances, or a combination of circumstances, can indicate use and registration in bad faith. Such is the case in the present dispute.

Several arguments of the Complainant support the assessment that the Domain Name has been registered and is being used in bad faith, such as the facts that:

- the Respondent is likely to have been aware of the widely known Trademarks of the Complainant at the time of registration of the Domain Name;

- the Respondent did not react to the Complainant’s email dated November 5, 2007, in which the Complainant requested the Respondent to transfer the Domain Name to the Complainant and offered to reimburse the registration costs;

- there is no evidence of any prior or present active use of the Domain Name by the Respondent;

- it is not possible to conceive a good faith use of the Domain Name by the Respondent; and

- the Respondent redirected traffic to the Domain Name to a domain name that was still available for registration.

Based on the foregoing, the Panel finds that the Respondent registered and is using the Domain Name in bad faith within the meaning of the Policy.

 

7. Decision

For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name, <kieskeurig.mobi>, will be transferred to the Complainant.

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Madeleine De Cock Buning
Sole Panelist

Dated: May 22, 2008