.NL domeinnaam-beslissingen (november 2012)

B9 11893. Vier beslissingen WIPO-Geschillenbeslechters in .nl-domeinnaamgeschillen, november 2012: Consumentembond.nl (overdracht bevolen), Mini-kopen.nl & bmw-kopen.nl (overdracht bevolen). Sexhyve.nl (overdracht bevolen) en airnewzealand.nl (overdracht bevolen).

Consumentembond.nl. WIPO Domain Name Decision DNL2012-0063, Consumentenbond tegen Gaststaette Rasthaus (Geschillenbeslechter: Dinant Oosterbaan).

Overdracht: The Panel finds that the Domain Name has been registered and is being used in bad faith. The primary CONSUMENTENBOND trademark of Complainant was first registered as a Benelux trademark on November 5, 1984. This date is well before the registration date of the Domain Name by Respondent. Considering also the notoriety (in the Netherlands) and distinctiveness of Complainant’s mark, the Panel finds that Respondent knew or should have known that the Domain Name, which is registered in the Dutch domain name space, included Complainant’s trademark almost entirely.  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 trademark 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.

Sexhyve.nl. WIPO Domain Name Decision DNL2012-0058, Hyves B.V. v. Private registrations co ltd. (Geschillenbeslechter: Richard van Oerle).

Overdracht: More specifically, given the manner in which the Domain Name, registered in the Dutch domain name space, is used and the content of the website to which the Domain Name resolves, there can be little doubt that the Respondent knew of the Trademark prior to registration of the Domain Name. Further, it is obvious to the Panel that the Respondent deliberately chose the Domain Name for the purposes of attracting traffic to a sex-related website. Under these circumstances, where a respondent has deliberately chosen a domain name confusingly similar to a well-known mark, and where no explanations have been forthcoming from a respondent, a panel is entitled to conclude that there is no bona fide (or fair) use of a domain name and that, therefore, the respondent lacks rights or legitimate interests.

Mini-kopen.nl & bmw-kopen.nl. WIPO Domain Name Decision DNL2012-0030, Bayerische Motoren Werke Aktiengesellschaft v. Linus Geerts (Geschillenbeslechter: Alfred Meijboom).

Overdracht: In the present case, it appears that the Respondent offers for sale BMW and MINI vehicles via its websites under the respective disputed domain names. No products of other brands than BMW respectively MINI are offered on such websites. There is no evidence of record in these proceedings that the Respondent has attempted to acquire many BMW and MINI domain names, thereby preventing the Complainant from registering domain names incorporating its Trademarks.The Panel, however, observes that the Respondent did not provide details on the websites under the disputed domain names that adequately inform potential purchasers about the fact that the Respondent is not an authorized reseller and has no authorized relationship with the Complainant. The mere fact that the home page of the websites under the disputed domain names mentions that “BMW kopen” and “MINI kopen”, respectively, are part of “Handelsprijzen.nl” is insufficient to be regarded as the required information with respect to the (absence of the) relation with the Complainant.

Airnewzealand.nl. WIPO Domain Name Decision DNL2012-0064, Air New Zealand Ltd. v. Kan. (Geschillenbeslechter: Paul Reeskamp).

Overdracht: Given the fact that Complainant’s AIR NEW ZEALAND word and device mark predates the date of the current registration of the Domain Name, as well as the fact that Complainant has submitted sufficient evidence of the fact that Air New Zealand can be considered as a well-known international airline (Air New Zealand Ltd. v. Christiand Co. Ltd., WIPO Case No. D2000-0360) and given the fact that Respondent is based in New Zealand, the Panel is of the opinion that Respondent was, or must have been aware of Complainant and at least one of its Trademarks at the time of registration of the Domain Name.

Furthermore – and this applies to both Trademarks – when taking into account that the website under the Domain Name offers sponsored links to inter alia (products and services of) competitors of Complainant and the fact that it is offered for sale, the Domain Name can also be considered as being used for commercial gain, by attracting Internet users to a website of Respondent or other online location through the likelihood of confusion which may arise with the Trademarks.