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Algemeen Nederlands Persbureau ANP B.V. v. European Travel Network [2004] GENDND 1225 (8 September 2004)

World Intellectual Property Organization

WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Algemeen Nederlands Persbureau ANP B.V. v. European Travel Network

Case No. D2004-0520

1. The Parties

The Complainant is Algemeen Nederlands Persbureau ANP B.V. (“ANP”), Den Haag, Netherlands, represented by De Brauw Blackstone Westbroek N.V., Netherlands.

The Respondent is European Travel Network, Miami, Florida, United States of America.

2. The Domain Name and Registrar

The disputed domain name <anpnieuws.com> is registered with Tucows.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 14, 2004. On July 15, 2004, the Center transmitted by email to Tucows a request for registrar verification in connection with the domain name at issue. On July 15, 2004, Tucows transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative and technical contact for the domain name. The Center then verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).

In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on July 26, 2004. In accordance with the Rules, paragraph 5(a), the due date for Response was August 15, 2004. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 17, 2004.

The Center appointed James A. Barker as the Sole Panelist in this matter on August 25, 2004. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.

4. Factual Background

The following facts are not contested.

The Complainant is a well-known Dutch news agency - the main independent news supplier for major newspapers in the Netherlands. The Complainant is the owner of registered and common law marks consisting of the words ANP, ANP NIEUWSTELEFOON and ANP@YOURSITE. Respectively, the registration dates for those marks are August 1994, May 1987, and November 2000.

The Respondent has been a respondent in other proceedings under the Policy. The Complainant referred to Expedia, Inc. v. European Travel Network, WIPO Case No. D2000-0137; Koninklijke Luchtvaart Maatschappij N.V. v. European Travel Network, WIPO Case No. D2000-0963; Martinair Holland N.V. v. European Travel Network, WIPO Case No. D2000-0964; Transavia Airlines C.V. v. European Travel Network, WIPO Case No. D2000-0965. In addition, the Respondent was also the respondent in Singapore Airlines Limited v. European Travel Network, WIPO Case No. D2000-0641. In each of those cases the Panels found in favour of the complainants.

In Koninklijke Luchtvaart Maatschappij N.V. v. European Travel Network, WIPO Case No. D2000-0963, Martinair Holland N.V. v. European Travel Network, WIPO Case No. D2000-0964, and Transavia Airlines C.V. v. European Travel Network, WIPO Case No. D2000-0965, identical responses were submitted by Mr. Ad Latjes, described in those cases, and described by the Complainant in this case, as the President of the Respondent. The disputed domain name in this case has Mr. Latjes listed as the technical and administrative contact for the disputed domain name.

For some period the disputed domain name reverted to the website of a well-known Dutch newspaper, De Telegraaf. From the registrar’s verification response provided to the Center, it appears that the domain name was registered on May 22, 2002, (the date the registrar’s record of the domain name registration was created).

5. Parties’ Contentions

A. Complainant

The Complainant’s name and trademarks are household names in the Netherlands as Complainant is the main independent news supplier for most of the major newspapers in the Netherlands.

The disputed domain name is, if not identical, at least confusingly similar to the Complainant’s registered marks.

The Respondent has no rights or legitimate interests in the disputed domain name. The Complainant gave it none. The Respondent cannot show any of the circumstances in paragraph 4(c) of the Policy, which might demonstrate rights or legitimate interests in the domain name.

The domain name was registered and is being used in bad faith. Considering the Respondent’s identity and the Complainant’s fame, the Respondent must have been aware of the Complainant’s marks when it registered the domain name.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

Paragraph 14(a) of the Rules provides, in effect, that if the Respondent does not submit a response the Panel shall proceed to a decision on the Complaint. Under 14(b) of the Rules, in the absence of exceptional circumstances, if a party does not comply with any provision of the Rules, a Panel shall draw such inferences as it considers appropriate. There are no exceptional circumstances in this case. Accordingly, the Panel infers that the Respondent does not deny the facts asserted and contentions made by the Complainant.

6. Discussion and Findings

For the Complaint to succeed the Complainant must prove that:

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

- the Respondent has no rights or legitimate interests in respect of the domain name; and

- the domain name was registered and is being used in bad faith.

Paragraph 4(a) of the Policy provides that the Complainant must prove all of these three elements, which are discussed respectively below.

A. Identical or Confusingly Similar

The Complainant has rights in its registered marks, evidence of which was attached to the Complaint.

Self-evidently the disputed domain name is not identical to the Complainant’s marks. But it is confusingly similar. Distinctive elements of the Complainant’s marks, notably the acronym ANP, are reproduced entirely in the domain name.

B. Rights or Legitimate Interests

Paragraph 4(c) of the Policy provides the following examples (summarised by the Panel) of circumstances that may demonstrate the Respondent’s rights or legitimate interests in the domain name:

(i) before any notice to it of the dispute, the Respondent used, or made 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;

(ii) the Respondent has been commonly known by the domain name;

(iii) the Respondent is making a legitimate noncommercial or fair use of the domain name.

There is no evidence that those circumstances apply in this case. There is no evidence of the circumstances described in paragraphs 4(c)(ii) and (iii) of the Policy. In relation to paragraph 4(c)(i), there is evidence that the Respondent used the domain name before notice to it of this dispute. The Complainant provided evidence that the domain name reverted to the homepage of a well-known Dutch national newspaper, De Telegraaf. The Panel finds that such use was not bona fide for the purpose of paragraph 4(c)(i). The Respondent’s business has, in previous cases, apparently been based in the Netherlands (see Koninklijke Luchtvaart Maatschappij N.V. v. European Travel Network, WIPO Case No. D2000-0963). Moreover, the aforementioned Mr. Latjes appears to be a Dutch national, and with interests in Dutch commerce and media. It is almost certain that, prior to this dispute, the Respondent was aware of the Complainant’s mark and the potential confusion that might result from the use of a confusingly similar domain name. As such, it appears that the confusing use of the domain name was deliberate.

There is no other evidence that the Respondent has rights or legitimate interests in the disputed domain name. On the Complainant’s uncontested evidence, the disputed domain name is one that has a distinctive association with the Complainant. In the absence of evidence from the Respondent, it is difficult to conceive that the Respondent could have a right or legitimate interest in the disputed domain name.

Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in the domain name.

C. Registered and Used in Bad Faith

As noted above, it is highly likely that the Respondent was aware of the Complainant when the Respondent registered the domain name in May 2002. The Complainant provided evidence that it is well-known in the Netherlands, as a large news service naturally would be. It is reasonable to expect that a use of the domain name would be associated with the Complainant. Other uses of the domain name would likely be deceptive. Accordingly, the Panel finds that the disputed domain name was registered, and is being used, in bad faith.

7. Decision

For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <anpnieuws.com> be transferred to the Complainant.

James A. Barker
Sole Panelist

Dated: September 8, 2004