Complainant is Delta Lloyd N.V. of Amsterdam, the Netherlands, represented by Novagraaf Nederland B.V., the Netherlands.
Respondent is Lotom Group S.A. of Panama City, Panama.
The disputed domain name <delta-lloyd.nl> is registered with SIDN through the registrar EPAG Domainservices GmbH.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 29, 2010. On June 30, 2010, the Center transmitted by email to SIDN a request for registry verification in connection with the Domain Name. On June 30, 2010, SIDN transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details. The Center verified that the Complaint satisfied the formal requirements of the Dispute Resolution Regulations for .nl Domain Names (the “Regulations”).
In accordance with the Regulations, articles 5.1 and 16.4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on July 1, 2010. In accordance with the Regulations, article 7.1, the due date for Response was July 21, 2010. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on July 22, 2010.
After having received the payment of the fees, the Center appointed Gregor S.P. Vos as the panelist in this matter on August 4, 2010. The Panelist finds that the Panelist was properly appointed. The Panelist has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required to ensure compliance with the Regulations, article 9.2.
Complainant, Delta Lloyd N.V., is a leading financial services company which offers a variety of financial products and services, such as insurances and mortgages. For this reason, Delta Lloyd has inter alia registered the trade name Delta Lloyd in the Dutch trade register.
Complainant is the owner of the following trademark registrations:
1. Benelux registration DELTA LLOYD and device (no. 151597) filed on February 19, 1987 for class 36.
2. Benelux registration DELTA LLOYD (no. 680871), filed on May 4, 2001 for class 36;
3. International registration DELTA LLOYD (no. 758573), registered on April 19, 2001 in Norway, Iceland and Switzerland for class 36;
4. Community trademark DELTA LLOYD (no. 2102788), filed on February 26, 2001 for class 36.
Hereinafter referred to as the “Trademarks”.
Complainant is also owner of the domain names <deltalloyd.com>, <deltalloyd.eu> and <deltalloyd.nl>.
Respondent is a company established in Panama City, Panama. Respondent became the holder of the Domain Name on June 5, 2008.
Complainant bases its Complaint on its Trademarks and on its trade name.
According to Complainant, the Domain Name is clearly confusingly similar when compared to Complainant’s trade name and Trademarks. Complainant argues that the addition of the hyphen (“-”) between the words DELTA and LLOYD does not take away the confusing similarity. According to Complainant, it is very common to use a hyphen between two words (“DELTA” and “LLOYD”) in digital representations, which URL’s (Uniform Resource Locators) are. Because of this it would be very likely that consumers will believe it is Complainant itself who operates the website under the Domain Name.
According to Complainant, Respondent has no trade name rights in the name Delta Lloyd and does not own any trademark registrations or is known in relation with the Domain Name.
Complainant furthermore alleges that Respondent is not using the Domain Name for bona fide trade practices. The use of the Domain Name cannot be described as legitimate non-commercial use of the Domain Name because the website under the Domain Name is a circulating display of sponsored links, some of which to competitors of Complainant.
Furthermore, Complainant argues that Respondent is or should have been aware of the trade name and trademark rights of Complainant. Complainant has been using its trade name and registered e.g. its Benelux trademark registration no. 151597 well before Respondent registered the Domain Name.
Complainant alleges that the Domain Name has been registered by Respondent with the aim to take advantage of the confusion between the Domain Name and Complainant’s rights to its trade name and Trademarks. The Domain Name is therefore registered in bad faith.
The Domain Name is offered for sale, and the website under the Domain Name contains sponsored links. Internet users are attracted to the website under the Domain Name through the likelihood of confusion of the source, sponsorship, affiliation or endorsement of the website. The Domain Name is therefore being used for commercial gain.
In addition, Complainant notes that Respondent has repeatedly registered domain names, which have been subject to domain name dispute resolution procedures. According to Complainant, in all these cases, the domain name in dispute was assigned to the complainant. This strengthens the view of Complainant that Respondent is acting in bad faith.
Respondent did not reply to Complainant’s contentions.
Article 10.3 of the Regulations provides that in the event that a respondent fails to submit a response, the complaint shall be granted unless the panelist considers it to be without basis in law or fact.
Based on article 2.1 of the Regulations, a claim to transfer a domain name must meet three cumulative conditions:
- The disputed domain name is identical or confusingly similar to a trademark or trade name protected under Dutch law, or other name by means of article 2.1 sub a (II) of the Regulations;
- The respondent has no rights to or legitimate interest in the disputed domain name;
- The disputed domain name has been registered or is being used in bad faith.
Considering these conditions, the Panelist rules as follows:
Complainant has based its Complaint on the Trademarks and has submitted copies of the trademark registrations from which it follows that it is the holder of the Trademarks. Complainant has furthermore based it Complaint on its trade name, of which it has submitted a copy of the extract from the Dutch trade register. Under Dutch law the mere registration of a trade name in the Dutch trade register does not grant the registrant rights in that trade name. To receive rights in the trade name, the trade name needs to be used to distinguish goods or services. The Panelist is satisfied that the Complainant has used its trade name Delta Lloyd in such a manner and that it has received rights in its trade name Delta Lloyd.
It is established case law that the top level domain “.nl” can be disregarded in assessing the similarity between the relevant trademark(s) on the one hand, and the disputed domain name on the other. In this regard, the Domain Name could be considered practically identical to the Trademarks. The only difference between the Domain Name and the Trademarks is the hyphen between “delta” and “lloyd”, which does not make any relevant difference (see also QSoft Consulting Limited v. Lotom Group S.A., WIPO Case No. DNL2009-0018, Royal Canin v. “Planet Media Group N.V.”, WIPO Case No. DNL2008-0009).
Given this view of the Panelist in relation to similarity between the Domain Name and the aforementioned Trademarks, and since Complainants’ trade name is identical to its Trademarks, similar arguments apply to the confusing similarity between the Domain Name and Complainants’ trade name. Therefore, the Panelist finds that the Domain Name is at least confusingly similar to Complainants’ Trademarks and trade name within the meaning of article 2.1 (a) of the Regulations.
Pursuant to article 2.1 (b) of the Regulations Complainant must demonstrate that Respondent has no rights to or legitimate interest in the Domain Name. This condition is met if Complainant makes a prima facie case that Respondent has no such rights or interests, and Respondent fails to rebut this (see for example Technische Unie B.V. and Otra Information Services v. Technology Services Ltd., WIPO Case No. DNL2008-0002).
As follows from the Complaint, Respondent does not have any relevant trademark or trade name rights regarding the term “delta-lloyd”. Respondent is not affiliated to Complainant and has received no consent to use the Trademarks. Respondent offers the Domain Name for sale and uses the Domain Name to offer sponsored links.
Respondent did not dispute this, and the Panelist could not establish any indications that any of the circumstances as described in article 3.1 of the Regulations apply, nor that Respondent in any possible other way has a right to or legitimate interest in the Domain Name. The Panelist is therefore satisfied that Respondent has no rights to, or legitimate interest in, the Domain Name.
Given the fact that Complainant’s Trademarks pre-date the date of the current registration of the Domain Name and the fact that Complainant apparently has been active under its trade name as of 1969 and since then has become a market leader in its field in the Netherlands, the Panelist is of the opinion that Respondent was aware or should been aware of Complainant and its Trademarks and trade name. Taken into account that the website under the Domain Name offers sponsored links to inter alia competitors of Complainant and is offered for sale, the Domain Name can also be considered as used for commercial gain, by attracting Internet users to a website or other online locations of Respondent through the likelihood of confusion with which may arise with the Trademarks and/or Complainants’ trade name.
Furthermore, taking into account various previous administrative panel decisions such as Prof. Dr. Geert Hofstede en Geert Hofstede B.V. v. Lotom Group S.A., WIPO Case No. DNL2008-0043; Technische Unie B.V. v. Lotom Group S.A., WIPO Case No. DNL2008-0063; ADP Nederland B.V. v. Lotom Group S.A., WIPO Case No. DNL2009-0009 and QSoft Consulting Limited, supra, in all of which Respondent was involved as the respondent as well and in which it also chose not to file a response, it seems likely that the Respondent follows a pattern of registering and using domain names in bad faith.
Given the above, the Panelist holds that the Domain Name has been registered and is being used in bad faith. The third criterion is therefore also met.
For all the foregoing reasons, in accordance with articles 1 and 14 of the Regulations, the Panel orders that the domain name, <delta-lloyd.nl> be transferred to Complainant.
Gregor S.P. Vos
Sole Panelist
Dated: August 18, 2010