Complainant is Elinca S.A. of Renens, Switzerland, represented by Marks & Clerk (Luxembourg) LLP of Luxemburg.
Respondent is Stylgraphix Reclame Studio of Harlingen, the Netherlands.
The disputed domain name <elinchrom.nl> (hereinafter the “Domain Name”) is registered with SIDN.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 24, 2010 by e-mail and on February 26, 2010 in hardcopy. On February 25, 2010 the Center transmitted by email to SIDN a request for registration verification in connection with the Domain Name. On February 25, 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 16.5, the Center formally notified Respondent of the Complaint, and the proceedings commenced on March 1, 2010. In accordance with the Regulations, article 7.1, the due date for Response was March 21, 2010. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on March 22, 2010.
After having received the payment of the fees, the Center appointed Paul L. Reeskamp as the panelist (the “Panelist”) in this matter on March 30, 2010. The Panelist finds that it 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.
In accordance with the Regulations, article 17.2, English will be the language used in these proceedings.
Complainant, Elinca S.A., is a company with worldwide activities, specialized in the field of photographic lighting materials. The company has been active for many decades. The International trademark ELINCHROM (“the trademark”) was applied for on February 6, 1967 and is now registered in the name of Complainant. The protection of the International trademark extends among other countries to the Benelux territory. The registration under number 332929, which covers the goods “generators for electronic flashes used in studio photography and photography reproduction” in class 9, is valid until February 6, 2017.
Complainant claims that it is the holder of the following domain names:
<elinchrom.com>, <elinchrom.info>, <elinchrom.fr>, <elinchrom.ru>, <elinchrom.us>
<elinchrom.no>, <elinchrom.asia>, <elinchrom.cn>, <elinchrom.tw>,<elinchrom.hk>, <elinchrom.my>, <elinchrom.kr>, <elinchrom.sg>, <elinchrom.es>, <elinchrom.in> and <elinchrom.it>.
The Domain Name was registered by Respondent on November 14, 2008 and consists of the term “elinchrom” and the country code top level for the Netherlands: “.nl”.
Currently, the Domain Name leads to a website which is titled “FotoSG” and which is identical to <fotosg.nl> (which is also held by Respondent), on which website Respondent offers for sale studio equipment for professional photographers, like cameras, filters and lights.
Complainant claims that it and/or its predecessors have been using the trademark since the early as 1960's. Complainant also states that Respondent used to be one of Complainant's distributors in the Netherlands. At this moment there no longer is any commercial relationship between Complainant and Respondent.
Complainant has contended that the Domain Name is identical to Complainant's trademark.
Complainant has put forward that Respondent has no rights or legitimate interests in the Domain Name. Complainant states that Respondent can satisfy none of the circumstances stipulated in the Regulations, article 3.1:
- There is no evidence that Respondent is using the Domain Name in connection with a bona fide offering of goods or service.
- Respondent is not commonly known by the Domain Name. Respondent has no connection or affiliation anymore with Complainant, nor is it a licensee of the trademark. Respondent does not have any rights with respect to the Domain Name, which wholly incorporates Complainant's trademark.
- Respondent uses Complainant's mark to misleadingly divert customers who are likely seeking Complainant's products.
The Domain Name has been registered or is being used in bad faith. Complainant addresses the four circumstances stipulated in the Regulations, article 3.2, as possible reasons why Respondent has registered the Domain Name:
- The Domain Name has been registered for the purpose of selling, renting, or otherwise transferring the domain name registration to a competitor of Complainant, for valuable consideration in excess of Respondent's out-of-pocket costs directly related to the registration of the domain name; or
- in order to prevent the owner of the trademark from reflecting the mark in a corresponding domain name under the “.nl” domain; or
- for the purpose of disrupting the business of Complainant; or
- Respondent intentionally attempted to attract for commercial gain, Internet users to Respondent's website or other online location, by creating a likelihood of confusion with Complainant's mark as to the source, sponsorship, affiliation, or endorsement of Respondent's website or location or of a product or service on Respondent's website or location.
Therefore, Complainant is of the opinion that it is entitled to transfer of the Domain Name.
Respondent did not reply to Complainant's contentions.
In accordance with the Regulations, article 1, a complainant can only submit the following claim: “A change of registrant, whereby the complainant becomes the registrant instead of the respondent”. In order for a complainant to submit a complaint, it must prove in accordance with the Regulations, article 2.1, that:
“(a) a domain name is identical or confusingly similar to:
I. a trademark, or trade name, protected under Dutch law in which the complainant has rights; or
II. a personal name registered in a General Municipal Register (‘gemeentelijke basisadministratie') of a municipality in the Netherlands, or the name of a Dutch public legal entity or the name of an association or foundation registered in the Netherlands under which the complainant undertakes public activities on a permanent basis; and
(b) the registrant has no rights to or legitimate interests in the domain name; and
(c) the domain name has been registered or is being used in bad faith.”
The Panelist finds that Complainant has rights in the trademark listed above.
Since the mark ELINCHROM is fully incorporated in the Domain Name and the Domain Name, when disregarding the “.nl” country code top level domain, consists solely of this mark, the Panelist finds the Domain Name to be identical to the trademark.
Complainant has therefore complied with article 2.1(a) of the Regulations.
According to the Regulations, article 2.1(b), Complainant must demonstrate that Respondent has no rights to or legitimate interests in the Domain Name. This condition is met if Complainant substantiates prima facie that Respondent has no rights or legitimate interests and Respondent fails to rebut that by providing evidence of - for example - any of the three circumstances stipulated in the Regulations, article 3.1 (cf. Société Air France v. A Coppola, WIPO Case No. DNL2009-0001, February 23, 2009).
Complainant has put forward that Respondent has no rights to or legitimate interests in the Domain Name, because Respondent is (i) not using the Domain Name in connection with a bona fide offering of goods or service, (ii) not commonly known by the Domain Name, and (iii) Respondent uses components of Complainant's trademarks to misleadingly divert customers.
Because these statements have not been contested, are prima facie established and the record contains no evidence that might indicate any right to or legitimate interest in the Domain Name otherwise, the Panelist considers Respondent's lack of rights or legitimate interests established.
Therefore, the Panelist finds that Respondent has no rights to or legitimate interests in the Domain Name. Complainant has therefore complied with article 2.1(b) of the Regulations.
On the basis of the Regulations, article 2.1(c), Complainant can only request a change of registrant, if the Domain Name has also been registered or is being used in bad faith.
Complainant claims – on the basis of Regulations, article 3.2 – that the Domain Name may have been registered on any of the grounds described in article 3.2 of the Regulations. Complainant finds it most likely that the Domain Name has been registered for commercial gain by attracting Internet users to Respondent's website through the likelihood of confusion with Complainant's trademark.
In light of the evidence produced, the fact that these claims have not been contested and the Panelist's own observations, these contentions are in this Panelist's view prima facie established. Therefore, the Panelist finds that the Domain Name has been registered or is being used in bad faith. Complainant has therefore complied with article 2.1(c) of the Regulations.
For all the foregoing reasons, in accordance with articles 1 and 14 of the Regulations, the Panelist orders that the domain name <elinchrom.nl> be transferred to Complainant.
Paul L. Reeskamp
Dated: April 15, 2010