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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Magazijn "De Bijenkorf" B.V. v. Accelerated Information B.V.

Case No. D2002-0015

 

1. The Parties

The Complainant is Magazijn "De Bijenkorf" B.V., a private company with limited liability, incorporated under the laws of the Netherlands with its principal place of business at Frankemaheerd 6, 1102 AN Amsterdam Zuidoost, The Netherlands, represented by Mr. Willem J.H. Leppink, attorney – at – law (Rotterdam Bar), Nautadutilh.

The Respondent is Accelerated Information B.V., a company that, according to the information obtained from the Registrar, has its address at U Parku 355, Trutnov, CZ 54344, Czech Republic, represented by Mr. P.J. Stuy, attorney – at – law (Amsterdam Bar), Stuy Advocaten.

 

2. The Domain Names and Registrar

The disputed domain name is <bijenkorf.com>.

The Registrar is Network Solutions, Inc., 505 Huntmar Park Drive, Herndon, VA 20170, U.S.A.

 

3. Procedural History

This is an administrative proceeding pursuant to the Uniform Domain Name Dispute Resolution Policy ("the Policy") adopted by the Internet Corporation for Assigned Names and Numbers ("ICANN") on August 26, 1999, the Rules for Uniform Domain Name Dispute Resolution Policy, approved by ICANN on October 24, 1999, ("the Rules") and the Supplemental Rules for Uniform Domain Name Dispute Resolution Policy ("the Supplemental Rules") of the WIPO Arbitration and Mediation Center ("the Center").

The Complaint was received by the Center by email on January 8, 2002, and in hardcopy on January 15, 2002.

The Complaint was acknowledged received by the Center on January 15, 2002.

On January 15, 2002, registration details were sought from the Registrar.

On January 18, 2002, the Registrar confirmed that the disputed domain name is registered in the name of the Respondent and at the address mentioned above. The Registrar further confirmed that the domain name at stake is active and that the language of the Service Agreement is English.

On January 18, 2002, the Center satisfied itself that the Complainant complied with all formal requirements (including payment of the prescribed fee) and on January 21, 2002, the Center formally dispatched copies of the complaint by post / courier (with enclosures) to the Respondent at the address as recorded with the Registrar and by e-mail and facsimile (without attachments). The Center also sent (i) copies of the material by the same methods to the Respondent’s administrative, billing and technical contacts at the addresses recorded by the Registrar, and to the Respondent’s attorney as indicated in the Complaint, and (ii) included with the material dispatched to the Respondent and to those contacts a letter dated January 21, 2002, containing notification of the commencement of this administrative proceeding. The latter notification (including the complaint without attachments) was on the same date also copied to the Complainant, to the Registrar and to ICANN.

The Respondent filed its response by email on February 7, 2002. The hardcopies with annexes were filed with the Center on February 11, 2002.

The Complainant elected to have the case decided by an administrative Panel consisting of a single member. The Respondent did not elect a three - member Panel pursuant to the Rules, Paragraph 5(c) and the Center hence appointed the Panel on March 4, 2002. On the same date the Center transmitted the case file to the Panel and notified the parties of the projected decision date of March 18, 2002.

The Panel finds that the Center has adhered to the Policy and the Rules in administering this case.

 

4. Factual Background

Having carefully examined the evidence submitted by Complainant and Respondent, the Panel finds that the following relevant facts are established:

- The Complainant, Magazijn "De Bijenkorf" B.V. is, at least in the Netherlands, very well known. Such can be deduced from a statement of fact made by the Respondent and admitting that in the Netherlands ‘nine out of ten people know that "De Bijenkorf" is a department store with her main store in Amsterdam’ (see paragraph. 18 of the Response). The renown of "De Bijenkorf" is further substantiated by Annex 9 to the Complaint that establishes that ‘every year 9 million people visit De Bijenkorf in Amsterdam’ and that ‘therefore this department store is and remains the biggest tourist attraction in the capital’.

- The Complainant is the owner of the Benelux trademark "DE BIJENKORF", registered with the Benelux Trademark Office since 1978 for a wide variety of goods and services (a copy of the given trademark appears at Annex 6 to the Complaint). The Complainant is currently exploiting a website under the URL http://www.bijenkorf.nl, a domain registered by the Complainant since June 19, 1995 (See Annex 8 to the Complaint).

- The domain name <bijenkorf.com> was registered by the Respondent on September 24, 1996, with Network Solutions, Inc.

- Hence, the Complainant’s aforementioned trademark predates the registration of the domain name by the Respondent.

- It is not contested that the Respondent is not and has never been a licensee of Complainant and that it is and has never been authorised by Complainant to use the relevant trademark.

- On March 18, 1999, counsel to Complainant apparently sent a formal letter of demand to Cybernet Activities B.V., a Dutch company hosting the <bijenkorf.com> domain name for the Respondent. By facsimile of the same date Mr. Sernets of Cybernet Activities replied that "bijenkorf" was a generic name that had nothing to do with Magazijn "De Bijenkorf" B.V. and that the domain was initially meant for the organisation of beekeepers worldwide. Mr. Sernets nevertheless proposed to assign the domain to the Complainant for an amount of 1500 Dutch Guilders (exclusive V.A.T.) (See Annex 3 to the Response). The domain not being active at that time, the Complainant apparently decided that there was no ground to further insist.

- After having noted that the domain had become active featuring explicit pornographic material, on January 10, 2001, counsel to Complainant again addressed a formal letter of demand to Cybernet Activities B.V. in its capacity of internet service provider hosting the <bijenkorf.com> domain. By facsimile of the same date the same Mr. Sernets of Cybernet Activities repeated his argument that "bijenkorf" was a generic name that had nothing to do with Magazijn ‘De Bijenkorf’ B.V. and that the Complainant could therefore not claim the registered domain. Mr. Sernets nevertheless asserted having contacted the owner of the domain who would be willing to sell the domain for 100,000 Dutch Guilders (See Annex 3 to the Response).

- Complainant further provides evidence that on April 23, 2001, when typing the URL http://www.bijenkorf.com this URL was automatically directed to the domain <amsterdamxxx.net>. The Respondent alleges that at that moment (spring 2001) the website had already been transformed into a search engine offering visitors links to sites with erotic content and that on April 23, 2001, the site may have been temporarily under reconstruction and therefore linked through to another internet-site. However, no evidence is submitted in support of this allegation.

- On May 12, 2001, a certain Mr. Srnec, apparently acting for ChiRa Sro (the alleged proprietor of the domain name at stake), addressed an email to the counsel of Complainant stating the following:

"(…) It is not true that there is an will to sell the domain against payment of an amount of f 100.000, -

The price dropped to f 50.000,- . Your client is willing to pay f 25.000,- offer which we received by mail (…)"

- In its Response, Respondent explicitly confirms that Mr. Sernets of Cybernet Activities B.V. (the internet service provider hosting the domain name at stake) and Mr. Srnec of ChiRa Sro (the alleged proprietor of the same domain name) are in fact one and the same person having migrated 20 years ago to the Netherlands and having the Dutch nationality. (See Paragraph 4 of the Response).

- On June 11, Mr. Sernets once more asserted that the owner of the domain would still be willing to assign the domain for an amount of 100.000 Dutch Guilders (See Annex 3 to the Response).

- At the time the Complaint was filed and to date the domain name at stake serves as a portal for various pornography sites (See Annex 5 to the Complaint) and the Respondent explicitly recognises to "earn his money by creating the linking" (See Paragraph 22 of the Response; see also Paragraph 10 of the Response : "Respondent earns his money by creating possibilities for searching visitors in linking them to erotic sites").

 

5. Parties’ Contentions

A. Complainant

The Complainant requests the Panel to issue a decision that the domain name <bijenkorf.com> be transferred to the Complainant . The Complainant invokes the following legal grounds as a basis for the requested relief:

Identity or Confusing Similarity

The Complainant asserts that the domain name is identical or at least confusingly similar to the trademark DE BIJENKORF mainly arguing that the word ‘DE’ ‘has no meaning as it is just the preposition’. (Complaint, Paragraphs 18 and 19 on p. 10)

No Rights

The Complainant contends that pursuant to section 4 (c) of the UDRP :

(i) Before any notice of the dispute, the Respondent did not use, or did not make demonstrable preparations to use the domain name in connection with a bona fide offering of goods or services;

(ii) the Respondent has not been and is not commonly known by the domain name; and

(iii) the Respondent is not making legitimate noncommercial or fair use of the Domain Name, without intent for commercial gain to misleadingly divert consumers or to tarnish Complainant’s trademark. (Complaint Paragraphs 21, 22 and 23 on page 11)

The complainant further contends that the Respondent is not and has never been a licensee of Complainant and that it has never been otherwise authorized by Complainant to use or register the domain name at stake (Complaint, Paragraph 15 on page 9)

Bad Faith

The Complainant alleges that the domain name was registered and used in bad faith, thereby pointing out that the registration in bad faith results from:

1. circumstances indicating that Respondent has only registered the domain name at stake for the purpose of selling it to Complainant for valuable consideration in excess of Respondent’s out-of-pocket costs directly relating to the domain name (see Complaint Paragraphs 26 – 29).

2. the registration of the domain name in order to prevent Complainant to register the same (see Complaint Paragraph 30).

3. the attempt of the Respondent to attract traffic to its website by creating confusion with the business of the Complainant (see Complaint Paragraph 32).

B. The Respondent

The Respondent requests the Panel to dismiss the claim of the Complainant. The Respondent invokes the following legal grounds as a basis for the requested dismissal.

Identity or Confusing Similarity

The Respondent alleges that the domain name at stake is not identical nor confusingly similar to the Complainant’s trademark because the domain name does not contain the word ‘DE’ which would constitute the distinctive element of the Complainant’s trademark thus distinguishing the Complainant from all other "bijenkorf". Therefore, the Respondent further alleges that "by deleting the word ‘De’ nobody in the Nederlands will associate "bijenkorf" with the department store ‘De Bijenkorf’, and will just recognize the meaning of the word ‘beehive’, thus ‘the bell-shaped straw container in which tame bees reside and collect honey’(…)" (See Response, Paragraph 18). The Respondent further argues that visitors will not be confused when visiting the website "bijenkorf.com" as it "will be clear at once that if they are looking for De Bijenkorf department store, this web-page is not the one…" (See Response, Paragraph 22).

No Rights

Summarized, the Respondent concludes having rights or legitimate interests in the domain name at stake for the following reasons:

1. "Bijenkorf" is a very common word. There are numerous companies, authorities or institutions in the Netherlands who carry the name "Bijenkorf" varying from investment companies, child welfare, music schools, hotels, restaurants, Jetmail-companies, etc. (See response, Paragraph 9 and Annex 1 to the Response Such also results in the common Dutch word "bijenkorf" lacking distinctiveness thus preventing monopoly.

2. The Complainant is too late to claim the domain name at stake and the same goes for <bijenkorf.info> and <debijenkorf.org> that have meanwhile been registered by third parties and from whom the Complainant does not appear to claim (See Response, Paragraphs 11 and 24).

3. The Respondent would have selected the name "bijenkorf" (beehive) intentionally thus translating the link between bees and honey to the link between the searching visitors in linking them to erotic sites (See Response, Paragraph 10).

4. The Respondent further alleges having developed activities shortly after registration and in any case already before the time the discussion started and that the developed activities were related to internet websites with an erotic content (whether as portal site or otherwise). In support of this allegation the Respondent submits Annex 4 to its Response (allegedly copies of web pages from the past). (See Response Paragraphs 19 – 21).

Bad faith

The Respondent denies having registered and used the domain name at stake and refutes the Complainant’s allegation for the following reasons:

1. Negotiating a transfer of a domain name upon payment does not constitute evidence of the domain name having been registered in bad faith ‘only serving the idea of selling it’;

2. The reproaches of Complainant that the domain name has nothing in common with the real meaning of ‘beehive’ are groundless taking into account the reason why this domain name was selected by the Respondent;

3. The Complainant did not diligently register the domain name at stake at the time it registered the domain name <bijenkorf.nl> back in 1995 although it had the opportunity thereto;

4. There is no unjust gain from the reputation of "De Bijenkorf" because ‘the visitor of website <bijenkorf.com> is not interested in the activities of Complainant, and visitors who are interested will know immediately that they visit not the website they are looking for". (See Response Paragraph 25)

 

6. Discussion and Findings

Under paragraph 15(a) of the Rules, the Panel must decide this 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.

To qualify for transfer, a Complainant must prove each element of paragraph 4(a) of the Policy, namely:

(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

(ii) the Respondent has no rights or legitimate interests in respect of the domain name; and

(iii) the disputed domain name has been registered and is being used in bad faith.

Identity or Confusing Similarity

1. Essential or virtual identity is sufficient for the purposes of the Policy: see The Stanley Works and Stanley Logistics, Inc v. Camp Creek. Co., Inc. (WIPO Case No. D2000-0113), Toyota Jidosha Kabushiki Kaisha d/b/a Toyota Motor Corporation v. S&S Enterprises Ltd. (WIPO Case No. D2000-0802) and Nokia Corporation v. Nokiagirls.com a.k.a IBCC (WIPO Case No. D2000-0102).

2. The test of confusing similarity under the Policy, unlike trademark infringement or unfair competition cases, is usually confined to a consideration of the disputed domain name and the trademark: Banco Atlantico S.A. v. Infomax 2020 S.L. (WIPO Case No D2000-0795); AltaVista Company v. S.M.A., Inc. (WIPO Case No. D2000-0927); Porto Chico Stores, Inc. v. Otavio Zambon (WIPO Case No. D2000-1270); Gateway, Inc. v. Pixelera.com, Inc., (WIPO Case No. D2000-0109); America Online Inc. v. Anson Chan (WIPO Case No. D2001-0004); Cimcities, LLC v. John Zuccarini d/b/a Cupcake Patrol (WIPO Case No. D2001-0491) and Playboy Enterprises International, Inc. v. Federico Concas, a.k.a John Smith, a.k.a. Orf3vsa (WIPO Case No. D2001-0745).

3. Under the Policy, confusing similarity is in the Panel’s opinion in any case to be upheld as soon as there exists a considerable risk that the ordinary Internet user familiar with the Complainant’s services will start a search on the Internet for the Complainant by entering the domain name at stake into his/her browser followed by a very common top generic level domain (gTLD) such as ".com". (cf. College Summit, Inc. v. Yarmouth Educational Consultants, Inc., WIPO Case No. D2000-1575).

4. In the case at hand the disputed domain name incorporates the word "bijenkorf" which is indisputably the prominent feature of the Complainants trademark. The fact that the domain name does not include the word ‘DE’ does nothing to detract from the immediate association with the Complainant aroused in the public mind by the word "bijenkorf". This is further evidenced by the Complainant selecting <bijenkorf.nl> as a ccTLD back in 1995 and not <debijenkorf.com>.

5. From the established facts the Panel furthermore concludes that the ‘DE BIJENKORF’ trademark is widely and favorably known among millions of people, in particular in the Netherlands, in connection with its department store activities. Such results in the ‘DE BIJENKORF’ trademark having a strong distinctive power. This is also recognized by the Respondent explicitly admitting that in the Netherlands ‘nine out of ten people know that "De Bijenkorf" is a department store with her main store in Amsterdam’ (see Paragraph. 18 of the Response) and such apparently despite the existence of numerous other companies and/or institutions having ‘DE BIJENKORF’ as part of their trade and/or company name (See Annex 1 to the Response).

6. Therefore, as opposed to the Virginmail [Virgin Enterprises Limited v. Internet Domains, (WIPO Case No. D2001-1008)] and Lovely girls [Porto Chico Stores v. Otavio Zambon, (WIPO Case No. D2000-1270)] cases, the Panel finds that, given the nature of the Internet and the distinctive character of the Complainants trademark on the here relevant geographical market, a user when typing <bijenkorf.com> in his browser will reasonably assume that the given domain name must resolve to the Complainant’s website or, at least to a website sponsored, affiliated or endorsed by the Complainant or alternatively to a website having something to do with bee-keeping and/or trade in honey. In the Panel’s view this kind of initial confusion meets the test of Paragraph 4 (a) (i) of the Policy, and such irrespective of the fact that the given that the user seeing the explicit nature of the http://www.bijenkorf.com website would quickly realize that it is in no way connected to the Complainant. Indeed, the latter fact does not necessarily imply the absence of an intention to attempt to attract, for commercial gain, Internet users to the website of the Respondent and can therefore not be a decisive element in the assessment of the ‘confusing similarity’ between the domain name and the trademark at stake.

7. In sum, taking into account (i) the very nature of the internet, (ii) the fact that the domain name in issue incorporates the term BIJENKORF, the sole distinctive feature of the Complainant’s trademark, and (iii) the distinctive character of the trade mark at stake in the here relevant geographical market, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s registered trademark ‘De Bijenkorf’ in the sense of Paragraph 4 (a)(i) of the Policy.

Illegitimacy

1. The Panel first of all notes that it is not contested that the Respondent is not and has never been a licensee of Complainant and that it has never been otherwise authorized by Complainant to use or register the domain name at stake.

2. From the evidence submitted, the Panel concludes that on March 18, 1999, counsel to Complainant sent a formal letter of demand to Cybernet Activities B.V., the Dutch company hosting the <bijenkorf.com> domain name for the Respondent. Both the Internet service providing (hosting) company and Respondent appear to be directed by the same person, Mr. Sernets, alias Mr. Srnec. The latter replied that the domain initially was meant for the organisation of beekeepers worldwide.

No evidence is submitted that the domain was active on March 18, 1999, i.e. before the time the discussion started and that the developed activities were related to Internet websites with an erotic content (whether as a portal site or otherwise). Indeed, the copies of the webpages attached to Annex 4 do not show any date. Nor does the Respondent submit any evidence showing demonstrable preparations to use the domain name in connection with a bona fide offering of goods or services.

The Panel therefore accepts the Complainant’s contention that bbefore any notice of the dispute, the Respondent did not use, or did not make demonstrable preparations to use the domain name in connection with a bona fide offering of goods or services.

3. Furthermore, the Respondent has not submitted any evidence permitting the Panel to hold that it has been or is commonly known by the domain name.

4. The fact that there are numerous companies, authorities or institutions in the Netherlands who carry the word "bijenkorf" in their trade – and / or company name does not provide the Respondent, that does not appear to be one of these companies, authorities or institutions, with a right or a legitimate interest in the domain name at stake. Unlike the Respondent, these companies, authorities or institutions might well, like the Complainant, have been entitled to claim a right or legitimate interest in the given domain name. The Panel is also not prepared to draw from the aforementioned fact the inference that "bijenkorf" is a common Dutch word lacking distinctiveness thus preventing monopoly and thus entitling everyone (including the Respondent) to use it whether it be as a domain name or otherwise. Such inference can indeed not stand where it is explicitly admitted that in the Netherlands ‘nine out of ten people know that "De Bijenkorf" is a department store with her main store in Amsterdam’ (see Paragraph 18 of the Response). Therefore, with respect to a user not figuring among the companies, authorities or institutions carrying the word "bijenkorf" in their trade – and / or company name, the Panel would only be prepared to accept the ‘lack of distinctiveness’ argument and hence a legitimate interest to use the domain name at stake if it were actually meant for bee and/or honey related activities. This is not the case here: indeed, no Internet user understanding the Dutch language could in the Panels opinion reasonably expect that the word "bijenkorf" (‘beehive’) to refer to pornography.

In the same line of reasoning, the Panel is not prepared to grant any credibility to the Respondent’s statement that it would have selected the name "bijenkorf" (beehive) ‘intentionally thus translating the link between bees and honey to the link between the searching visitors in linking them to erotic sites’. The allegation in Annex 3 to the Response, and according to which the domain would initially have been meant for the organisation of bee-keepers worldwide (See Annex 3 to the Response), indeed urges the Panel to infer two possible, alternative conclusions:

a. The allegation is correct which necessarily implies that the Respondent is now making up an a posteriori explanation and thus attempts to create an artificial legitimate interest for the use of the domain name at stake; or

b. The allegation is not correct which necessarily implies that the Respondent initially lied about the registration purpose and therefore had a hidden agenda.

None of the above conclusions can, in the Panel’s opinion, support the alleged legitimate interest of the Respondent. Below, in the framework of the bad faith assessment, the Panel will draw the most plausible conclusion, taking into account all the circumstances of the case at hand.

5. The argument that the Complainant is simply too late to claim the domain name at stake and that the same goes for <bijenkorf.info> and <debijenkorf.org> that have meanwhile been registered by third parties actually comes down to the ‘first come, first served’ argument. However, the Respondent seems to forget that the legitimate interest is a condition precedent for the application of the ‘first come, first served’ principle. The question whether the current proprietors of <bijenkorf.info> and <debijenkorf.org> meet that condition precedent is not before this Panel and is therefore not relevant to decide the case at hand.

6. The Respondent finally explicitly admits earning his money by creating possibilities for searching visitors to link to pornographic sites and therefore undoubtedly uses the domain name at stake for commercial purposes (See Paragraphs 10 and 22 of the Response). However, the use of a domain name for the offering of pornography on a website is not in and of itself to be considered as illegitimate, (see Porto Chico Stores, Inc. v. Otavio Zambon, (WIPO Case No. D2000-1270)).

The key question therefore becomes whether the Respondent’s commercial use can be considered as a fair use, i.e. without intent for commercial gain to misleadingly divert consumers or to tarnish Complainant’s trademark. For the reasons given in relation to bad faith (see below), the Panel is not prepared to accept such fair use to be present in the case at hand.

7. Following, the Panel concludes that the Respondent has no right or legitimate interest in respect of the domain name at stake.

Bad faith registration and use

1. Taking into account all relevant circumstances, a finding of bad faith may be made where the Respondent "knew or should have known" of the registration and use of the trademark prior to registering the domain name: Yahoo! Inc. v. Yahoosexy.com, Yahoo-sexy.com, Yahoosexy.net, Yahousexy.com and Benjamin Benhamou Case (WIPO Case No. D2001-1188); see also Façonnable SAS v. Names4sale (WIPO Case No. D2001-1365).

Given the fame of DE BIJENKORF in the Netherlands and the fact that the person directing the Respondent migrated 20 years ago to the Netherlands and has Dutch nationality, the Panel finds that the Respondent must have known of the ‘DE BIJENKORF’ mark before it registered the domain name at stake. This is also not denied by the Respondent who, to the contrary, explicitly admits that in the Netherlands ‘nine out of ten people know that "De Bijenkorf" is a department store with her main store in Amsterdam’ (see Paragraph 18 of the Response). The allegation in Annex 3 to the Response, and according to which the domain would initially have been meant for the organisation of bee-keepers worldwide, is not supported by the slightest evidence which leaves the Panel no alternative than to conclude that the allegation is not correct necessarily implying that the Respondent initially lied about the registration purpose and therefore indeed had a hidden agenda. This conclusion is further supported by the following proven facts:

a. As from the very first contact with the Complainant the Respondent made overtures to sell the domain name at stake to Complainant for valuable consideration in excess of Respondent’s out-of-pocket costs directly relating to the domain name (see Annex 3 to the Response and Annex 4a to the Complaint;

b. Mr. Sernets has at several occasions deliberately hidden the fact that he was not only the director of Cybernet Activities B.V. (the internet service provider hosting the domain name at stake) but also of ChiRa Sro (the alleged proprietor of the same domain name) and that Mr. Sernets and Mr. Srnec are in fact one and the same person (See Annex 3 to the Response and in particular the fax message of January 10, 2001, where Mr. Sernets writes : "(…) Ik heb contact gehad met de eigenaar en deze is bereid het domain voor f 100.000,- te verkopen" – free English translation : "(…) I have had contact with the owner [who is actually Mr. Srnec or alias Mr. Sernets] and he is prepared to sell the domain for an amount of f 100.000,"; see also the fax message of June 11 2001, where the same Mr. Sernets writes again : "(…) Na overleg met de rechthebbende eigenaar van dit domain, is deze bereid het domein over te dragen voor f 100.000,-" – free English translation : "(…) After discussion with the rightful owner of this domain [i.e. with the author of the fax message himself], the latter is prepared to assign the domain for an amount of f 100.000,-";

2. Furthermore, there was and is no need for the Respondent to use <bijenkorf.com>. Where no Internet user understanding the Dutch language could in the Panel’s opinion reasonably expect that the word "bijenkorf" (‘beehive’) refers to pornography, the term indeed has no relevant meaning or significance for the Respondent’s business except as an attempt to attract for financial gain, internet users to the Respondent’s website by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of the Respondent’s website or of a product or service on the Respondent’s website or linked locations (see also CCA Industries, Inc., v. Bobby R. Dailey, (WIPO Case No. D2000-0148 and World Wrestling Federation Entertainment, Inc. v. Matthew Bessette, (WIPO Case No. D2000-0256)). The Respondent not having shown any legitimate interest in the domain name at stake, the fact that Internet visitors would know immediately that they do not visit the website they are actually looking for can not neutralize a bad faith finding, the sole relevant fact to be established indeed being the wrongful attempt to attract Internet users to the Respondent’s website for financial gain by way of the registration and use of a domain name that is confusingly similar to a trademark. For the same reason the Panel is not prepared to follow the Respondent’s argument that the Complainant would not have diligently registered the domain name at stake at the time it registered the domain name <bijenkorf.nl> back in 1995.

3. Whether the Respondent’s hidden agenda actually consisted of the intentional misleading to divert consumers for commercial gain or of acquiring the domain name at stake primarily for the purpose of selling it to the Complainant or of a combination of both, is further irrelevant. The conclusion indeed remains the same: the Panel concludes that the Respondent registered and uses the domain names at stake in bad faith.

 

7. Decision

Pursuant to paragraphs 4 (i) of the Policy and 15 of the Rules, the Panel directs that the domain name <bijenkorf.com> be transferred from the Respondent to the Complainant.

 


 

Yves Van Couter
Sole Panelist

Dated: March 18, 2002

 

Источник информации: https://internet-law.ru/intlaw/udrp/2002/d2002-0015.html

 

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