WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

The State of the Netherlands v. Iam Humlum

Case No. D2002-0248

The Complainant is The State of the Netherlands, acting in these proceedings through Pels Rijcken & Droogleever Fortuijn, The Hague, the Netherlands.

The Respondent is Iam Humlum of Snaasa, Norway.

The domain name in dispute is <postbus51.com> ("the Domain Name"). The Registrar is NamesDirect.com, Inc.

The Complaint was filed with the WIPO Arbitration and Mediation Center ("the Center") by Pels Rijcken & Droogleever Fortuijn on behalf of the Complainant by email on March 14, 2002, and in hard copy on March 18, 2002. The Registrar verified by email on March 28, 2002, that it was the Registrar and that the Respondent was the registrant of the Domain Name, that the registration agreement was in English, and that the Uniform Domain Name Dispute Resolution Policy ("the Policy") applied. Although the Registrar did not specifically confirm that its registration agreement required submission by the Registrant to the court jurisdiction at the location of its principal office, the Panel has confirmed that the current version of its registration agreement does so provide and is prepared to assume that it did so provide when the Domain Name was transferred to it on May 13, 2001. The Complainant filed an Amended Complaint by email on April 15, 2002, and in hard copy on April 16, 2002, clarifying its submission to the court jurisdiction at the location of the Registrar’s principal office in response to the Center’s Notification of Deficiency.

Having checked compliance with formal requirements, the Center gave Notification of Complaint and Commencement of Administrative Proceeding on April 17, 2002, by post and by email to the email addresses for the Respondent on the Registrar’s database and to a postmaster address. Several messages were returned with error indications. However, delivery of the Notification and Amended Complaint and Annexes (which had been provided in pdf format) to one address appeared to be successful on April 17 and/or 19, 2002.

The hard copy Complaint as sent by the Complainant to the Respondent by courier was returned with an unsigned note stating "… I have to innform [sic] you that got the wrong name or address. My name is not similar to the name on the documents. Pleace [sic] refrain from sending me more papers, or I will be forced to take legal actions." By email of April 19, 2002, the Center invited the Respondent to provide a postal address in accordance with paragraph 2(j) of the Rules for Uniform Domain Name Dispute Resolution Policy ("the Rules"), but did not receive any reply. However, the Respondent sent a Response to the Complaint by email to the Center on May 6, 2002. This stated that the Respondent was making a film on a ship in the Atlantic and that, because of the cost of internet traffic, the Respondent only read and responded to email on the first Monday of every month.

The members of the Panel - Jonathan Turner (presiding), Sir Ian Barker QC and Peter Nitter - submitted signed Statements of Acceptance and Declarations of Impartiality and Independence and were duly appointed on June 11, 2002. In accordance with paragraph 15 of the Rules, the Panel was required to forward its decision to the Center by June 25, 2002, in the absence of exceptional circumstances.

Having reviewed the file, the Panel concludes that the Complaint complied with the applicable formal requirements, was properly notified to the Respondent and has been submitted to a duly appointed Panel in accordance with the Policy applicable to the Domain Name.

"Postbus" is Dutch for "PO Box". "Postbus 51" was and is the postal address of the Netherlands State Information Office which was founded shortly after the Second World War. "Postbus 51" has since come to be used as the name of the Office itself. The Office aims to provide objective and impartial information to the Netherlands public on matters of general interest such as infectious diseases, chemical hazards, education, and the introduction of new currency. It has a website at <postbus51.nl>.

The Domain Name was originally registered with Network Solutions, Inc. on July 25, 1999, but was transferred to the Registrar on May 13, 2001. It currently resolves to a service provider’s default web page.

The Complainant contends that the Domain Name is identical to the mark "Postbus 51" in which it has rights by virtue of its use and reputation; that the Respondent has no rights or legitimate interests in respect of the Domain Name, and that the Respondent registered and has used the Domain Name in bad faith. In particular, the Complainant alleges that the Domain Name was used for the website of a Dutch political party, Leefbaar Nederland, until its then leader, the late Dr Pim Fortuijn, was deposed; thereafter the website at this address displayed information for a non-existent lottery; and at the date of the Complaint, the Domain Name was pointed to the political website of Dr Fortuijn, who was standing for election to the Dutch parliament. The Complainant alleges that the use of the Domain Name for particular political parties is liable to cause confusion and to damage the Complainant’s reputation for impartiality. The Complainant requests that the Domain Name be transferred to it.

The Respondent states that the Domain Name will be used for his South African film company, which he hopes will be operational in the summer of 2003. He does not think that there will be any confusion between a Dutch government organization and a South African film company. He contends that when people in the Netherlands want to get information about a government organization, they will refer to <postbus51.nl> instead of the commercial <postbus51.com>. He points out that the Complainant registered <postbus51.nl> in October 1995 and says that the fact that the Complainant had not registered the Domain Name by July 1999 indicates that it was not interested in the Domain Name. The Respondent did not dispute any of the Complainant’s allegations as to his earlier use of the Domain Name.

The Response did not contain the certification required by paragraph 5(b)(viii) of the Rules, but the Panel has nevertheless decided to take it into account.

In accordance with paragraph 4 of the Policy, a complainant must prove (i) that the domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; (ii) that the respondent has no rights or legitimate interests in respect of the domain name; and (iii) that the domain name has been registered and is being used in bad faith.

As to the first requirement, the Panel considers that the Domain Name is identical to the mark "Postbus 51"; for this purpose the .com gTLD should be disregarded (WIPO Case No. D2001-0154, KCTS Television Inc. v Get-on-the-Web Ltd, <kcts.com>). The Panel is also satisfied that the Complainant has rights in the mark "Postbus 51" by virtue of its use and reputation.

As to the second requirement, the Respondent has not provided any evidence of genuine use or preparations to use the Domain Name for a bona fide purpose prior to the Complaint. The film company to which he refers in his Response is evidently not yet operational. The Panel is satisfied that the Respondent does not have any rights or legitimate interests in respect of the Domain Name.

As to the third requirement, the Complainant’s allegations regarding the Respondent’s use of the Domain Name were not substantiated by any documentary evidence, but were not disputed by the Respondent. Under paragraph 5(b)(i) of the Rules, the Respondent was required to respond specifically to the statements and allegations contained in the Complaint. Furthermore, under paragraph 15(a) of the Rules, the Panel has to decide the Complaint on the basis of the statements and documents submitted. In the absence of any challenge to the certified allegations in the Complaint regarding the Respondent’s past use of the Domain Name, the Panel considers that it should treat these allegations as true.

On this basis, the Panel considers that the Respondent’s use of the Domain Name to point to websites of Dutch political parties was liable to cause confusion and to disrupt the Netherlands State’s official information service. The Panel does not accept the Respondent’s suggestion that people in the Netherlands would necessarily recognize the Domain Name as referring to a commercial site as opposed to a government site, particularly where it was in fact linked to a political (i.e. non-commercial) website. Many internet users assume that the .com gTLD may be used for any type of site, as is the fact.

The Panel also infers from the nature and use of the Domain Name that the Respondent was aware of the significance of the name "Postbus 51" in Dutch public affairs. If he were not so aware, the choice of this unusual Domain Name and this use of it would be an extraordinary coincidence.

Given the nature and use of the Domain Name, and the absence of any bona fide use of it since its registration, the Panel concludes that it was registered in bad faith to take advantage of its identicality to the name of the Complainant’s official information service. The Panel further concludes that it was used in bad faith, so as to cause confusion and disruption, including as at the date of the Complaint, when it was still linked to the political website of Dr Pim Fortuijn.

The Respondent’s alleged future intention to use the Domain Name for a film company (even if true) cannot affect the validity of the Complaint, which must be assessed by reference to the use being made of the Domain Name at the date of the Complaint.

The Panel concludes that the Domain Name was registered and used by the Respondent in bad faith. In accordance with the Policy and the Complainant’s request, the Domain Name should be transferred to the Complainant.

The Panel decides that the Domain Name <postbus51.com> should be transferred to the Complainant.