Paragraph 15 of the Rules provides that the Panel is to 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 that it deems applicable.
In that regard, the Panel also notes that the burden of proof is on the Complainant to make out its case and past UDRP panels have consistently said that a Complainant must show that all three elements of the Policy have been made out before any order can be made to transfer a domain name.
For the Complainant to succeed it must prove, within the meaning of paragraph 4(a) of the Policy, that:
A. The domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
B. The Respondent has no rights or legitimate interests in respect of the domain name; and
C. The domain name has been registered and is being used in bad faith.
The Panel will therefore deal with each of these requirements in turn.
A. Identical or Confusingly Similar
The Policy simply requires the Complainant to demonstrate that the Disputed domain name is identical or confusingly similar to a trademark in which the Complainant has rights. The Panel is satisfied that the Complainant is the owner of registrations of the trademarks "KOOPPLEIN.NL" in Benelux.
The Panel finds that the Disputed domain name <koopplein.co.nl> fully incorporates the main element of "KOOPPLEIN" of the Complainant’s trademarks “KOOPPLEIN.NL”. The Panel finds that the addition of the "co.nl" suffix is irrelevant when determining whether the Disputed domain name is confusingly similar to the Complainant's trademark.
The Panel is of the opinion that the internet users will fall into false impression that the Disputed domain name is an official domain name of the Complainant. The Panel recognizes the Complainant's rights and concludes that the Disputed domain name is confusingly similar with the Complainant's trademarks. Therefore, the Panel concludes that the requirements of paragraph 4(a)(i) of the Policy is provided.
B. Rights or Legitimate Interests
Under paragraph 4(a)(ii) of the Policy, the Complainant has the burden of establishing that the Respondent has no rights or legitimate interests in respect of the disputed domain name.
It is open to a Respondent to establish its rights or legitimate interests in a domain name, among other circumstances, by showing any of the following elements:
(i) before any notice to you [the Respondent] of the dispute, your 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; or
(ii) you [the Respondent] (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you [the Respondent] are 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 trademark or service mark at issue.
Thus, if the Respondent proves any of these elements or indeed anything else that shows that it has a right or legitimate interest in the Disputed domain name, the Complainant will have failed to discharge its burden of proof and the Complaint will fail.
The Complainant contends that the Respondent has made no use of, or demonstrable preparations to use, neither of the Disputed domain name in connection with a bona fide offering of goods or services, is not making a legitimate non-commercial or fair use of the Disputed domain name, and is not commonly known under the Disputed domain name. Moreover, the Complainant states that the Disputed domain name is an online market place which renders it directly in competition with Complainant's trademark and website.
In the absence of a response, the Panel accepts the Complainant's allegations as true that the Respondent has no authorization to use the Complainant’s trademarks in the Disputed domain name. Hence, as the Complainant has made out its prima facie case, and as the Respondent has not demonstrated any rights or legitimate interests as illustrated under paragraph 4(c) of the Policy, nor has the Panel found any other basis for finding any rights or legitimate interests of the Respondent in the Disputed domain name, the Panel concludes that the Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
The Panel notes that the Complainant must prove both that the Disputed domain name was registered in bad faith and that it is being used in bad faith. The Panel is of the opinion that due to the earlier rights of the Complainant in the trademark “KOOPPLEIN.NL”, as well as its extensive and intensive usage and notoriety in Netherlands, the Respondent was aware of the Complainant and its trademarks at the time of registration of the Disputed domain name (see e.g., Ebay Inc. v. Wangming, WIPO Case No. D2006-1107; General Electric Company v. CPIC NET and Hussain Syed, WIPO Case No. D2001 0087). Referring to Parfums Christian Dior v. Javier Garcia Quintas and Christiandior.net, WIPO Case No. D2000-0226, the Panel believes that the awareness of the Complainant’s trademark at the time of the registration of the Disputed domain name is to be considered an inference of bad faith registration. Moreover, the attempt of registering third parties' trademarks as domain names such as <www.marktplaats.nl> also depicts that the Respondent is acting in bad faith.
Therefore, in light of the above-mentioned circumstances in the present case, the Panel finds that the Disputed domain name has been registered and is being used in bad faith and that the Complainant has established the third element under paragraph 4(a)(iii) of the Policy.
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