{ "case_number": "CAC-ADREU-005396", "time_of_filling": null, "domain_names": [], "case_administrator": null, "complainant": [], "complainant_representative": null, "respondent": [], "respondent_representative": null, "factual_background": "Based what has been brought forward by Complainant and has not been contested by Respondent, the following is relevant in relation to the Complainant and the Complaint.\r\n\r\nComplainant is the Dutch company Sligro Food Group Nederland B.V, a private company with limited liability established in the Netherlands in 1972. Complainant is part of the Sligro Food Group (hereinafter: “Sligro”). The ultimate parent of Complainant is Sligro Food Group N.V. Sligro is active in the exploitation of retail- and wholesale of food and non-food products.\r\n \r\nSligro is very well-known in the relevant market. In addition, Sligro is well-known by the general public in the Netherlands. There are 44 cash and carry and 10 delivery-service wholesale outlets, located all across the Netherlands. Sligro is the market leader in the foodservice market.\r\n\r\nSligro is inter alia owner of the following SLIGRO trademarks: the Benelux word mark SLIGRO with registration number 0574958), the Benelux device mark with registration number 0734763, the Benelux word mark FEESTPAKKEN VAN SLIGRO, DAT PAKT ALTIJD GOED UIT with registration number 0578797 and the Benelux word mark EEN KERSTCADEAU VAN SLIGRO PAKT ALTIJD GOED UIT with registration number 0822076. \r\n \r\nComplainant and\/or companies belonging to the Sligro Food Group have been trading under the name SLIGRO uninterruptedly as of 1935. \r\n \r\nThe domain name shall hereafter also be referred to as “the Domain Name”. Over the years Sligro registered several domain names equivalent to and\/or consisting of the word mark and the trade name both as gTLD and as ccTLD inter alia: \r\n (28\/02\/1997), (24\/01\/1999), (12\/02\/008), (22\/02\/2001), (12\/02\/2007); and (09\/01\/2003), (09\/01\/2003), (7\/04\/2007). \r\n \r\nOn 13 July 2007, Respondent registered the Domain Name. Respondent is a Dutch individual, not known to Complainant. There is no relation between Complainant and Respondent whatsoever and no relation between parties has ever existed. \r\n \r\nComplainant argued that before entering in this ADR-procedure Complainant tried to settle this matter amicably. Around mid-February 2008 Complainant contacted Respondent requesting him to transfer the Domain Name to Complainant. Respondent agreed to transfer the Domain Name to Complainant. On 29 February 2008 Complainant sent a letter to Respondent in which a “form for changing the registered holder of a domain name” was included. However, Respondent did not react. On 23 May 2008, Complainant again contacted Respondent by telephone. Respondent indicated that he was too busy to deal with the matter and would react within a week. No reply came. \r\n \r\nComplainant alleged that on 30 May 2008 Complainant sent the first registered cease and desist letter to Respondent, requesting Respondent to cease any infringement of Complainants trade marks and to transfer the Domain Name to Complainant. Complainant received a handwritten response from Respondent in which he indicated that this matter had again no priority for Respondent. On 20 January 2009 (the lawyers of) Complainant sent a second cease and desist letter to Respondent, requesting to voluntarily transfer the Domain Name to Complainant. In his handwritten reaction Respondent – more or less – intended to rebut that Respondent infringes the trade marks and trade name of Complainant. Again Respondent did not cooperate. \r\n \r\nAs an ultimate attempt to avoid this legal procedure, (a lawyer of) Complainant contacted Respondent to search for an amicable settlement. According to Complainant, Respondent indicated that he was willing to make a proposal for settlement in the (near) future, but after several reminders thereto by Complainant, Respondent did not revert. Given the pattern in Respondent’s behavior not to react at all notwithstanding promises to do so, and, given the risk that the Domain Name can be transferred to a (connected) third party and thereby complicating matters for Complainant, Complainant had no other option than to initiate this ADR-procedure.", "other_legal_proceedings": "The panel is not aware of other legal proceedings related to the disputed domain name.", "discussion_and_findings": "Pursuant to article 22 (10) of the Regulation (EC) No. 874\/2004 of 28 April 2004 and Paragraph B10 (a) of the ADR Rules, in a situation where Respondent fails to respond within the given deadlines, this may be considered as grounds to accept the claims of the Complaint. In this case the Panel has the opinion that the Response, although it was solely a deficient Response and a “repaired” Response has been submitted far after the given deadline, is still deficient. Because of the fact that Respondent did not comply with any of the time periods established by the ADR Rules, the Panel shall proceed to a decision on the Complaint only and may consider this failure to comply as grounds to accept the claims of the other party.\r\n\r\nThe foregoing does not mean, whenever a Respondent fails to respond, a Complaint should be upheld. Therefore, Complainant is still required to demonstrate that the provisions of article 21 (1) of the Regulation (EC) No. 874\/2004 and Parahraph B11 (d) of the ADR Rules are satisfied. The Complaint was filed pursuant to Article 22 (1) (a) of the Regulation EC No. 874\/2004, which provides that an ADR procedure may be initiated by any party where the registration of a domain name is speculative or abusive within the meaning of Article 21 of the Regulation (EC) No. 874\/2004.\r\n\r\nAccordingly, the Panelist’s decision, as mentioned before, has to be based on the provision of Article 21 (1) of the Regulation (EC) No. 874\/2004. The domain name has therefore to be transferred if the domain name:\r\ni.\tis identical or confusingly similar to a name in respect of which a right is recognised or established by national and\/or community law; and\r\nii.\thas been registered by its holder without rights or legitimate interests in the domain name; and\/or\r\niii.\thas been registered or is being used in bad faith.\r\n\r\n- Identity or confusingly similarity\r\n\r\nComplainant has provided an extract of the commercial register of the relevant Dutch Chamber of Commerce and several extracts of the Benelux trade mark register. These extracts show that Complainant is registered with the Dutch Chamber of Commerce and that Complainant is the owner of several Benelux trade mark registrations. As Respondent did not submit any relevant and serious Response, the Panel accepts that the name SLIGRO is used by Complainant and that Complainant is the owner of the trade marks registations. Therefore, Complainants has rights to the trade name SLIGRO FOOD GROUP and the trade marks. \r\n\r\nThe disputed domain name is confusingly similar to the most significant part of the trade name, namely Sligro and the Domain Name is identical to the Benelux word mark SLIGRO. It is well-established that the specific top level of a domain name <.eu> does not affect the domain name for the purpose of determining whether it is identical or confusingly similar pursuant to Article 21 (1) of the Regulation (EC) No. 874\/2004.\r\n\r\nThe Panel thus finds that the Domain Name is confusingly similar to the trade name Sligro and identical to the Benelux trade mark SLIGRO of Complainant and therefore, the first provision of Article 21 (1) of the Regulation (EC) No. 874\/2004 is satisfied.\r\n\r\n- Right to or legitimate interest in the domain name\r\n\r\nArticle 21 (1) (a) of the Regulation (EC) No. 874\/2004 requires Complainant to prove that Respondent has no rights or legitimate interests in the disputed domain name. However, as it is often an impossible task of proving a negative circumstance, requiring information that is often within the knowledge of Respondent, it is the Panel’s view that if Respondent has no rights or legitimate interests and Respondent fails to show one of the circumstances under Article 21 (2) of the Regulation (EC) No. 874\/2004, then Respondent may lack a legitimate interest in the domain name.\r\n\r\nComplainant alleged that Respondent has never been generally known by the name Sligro as a natural person, nor as an undertaking, nor as an organization. Nor has Respondent any other (registered) rights in the name. Respondent is also not connected to Complainant in any way. Furthermore, Complainant has submitted supporting evidence that Respondent never used the Domain Name with the offering of goods and services nor has he made demonstrable preparations to do so. The website attached to the Domain Name is a so called parking site and after a short while, the Domain Name redirects to the domain name and website of a third party. The website related to the Domain Name is factually used as a so-called “referral page”. This does not constitute a legitimate use. Hence, Respondent does not use the Domain Name at all.\r\n\r\nIn the absence of a proper and timely Response from Respondent to the claims of Complainant, the Panel finds that Complainant has made a sufficient prima facie showing that Respondent has no rights or legitimate interests in the Domain Name. Nevertheless, Respondent explained in his Response, which was prima facie not credible, why he has registered the Domain Name, but this statement was not substantiated by Respondent.\r\n\r\nThe Panel therefore accepts Complainants’contention that Respondent has no rights or legitimate interests in the Domain Name and the the requirements of Article 21 (1) (a) of the Regulation (EC) No. 874\/2004 is also satisfied.\r\n\r\n- Bad faith registration and use.\r\n\r\nThe above finding that Respondent does not have any rights or legitimate interests in the Domain Name is enough to satisfy the requirements of Article 21 (1) of the Regulation (EC) No. 874\/2004. However, for completeness, the Panel also considers whether the Domain Name was registered or is being used in bad faith.\r\n\r\nComplainant argued that Respondent must or should have been aware of the fact that Complainant has rights in the name Sligro as this name is well-known in the Netherlands. Complainant submitted evidence that Respondent is even a customer of Sligro. Furthermore, Complainant stated that Respondent has registered the Domain Name to attract visitors to Respondent’s Domain Name and website. Complainant argued that the Domain Name was intentionally used by Respondent for commercial gain to Respondent’s website by creating a likelihood of confusion with the name and trade marks of Complainant. The name and trade marks of Complainant have a right that is recognized by national and Community law. \r\n\r\nThe Panel finds that Complainant has sufficient showed that the Domain Name has been registered and is being used in bad faith by Respondent.\r\n\r\nThe Panel therefore accepts Complainants’contention that Respondent has registered and used the Domain Name in bad faith and the the requirements of Article 21 (1) (a) of the Regulation (EC) No. 874\/2004 is also satisfied.", "decision": "As Complainant is a private company with limited liability established in the Netherlands, it satisfies the general eligibility criteria for registration of the domain name set out in Paragraph 4 (2) (b) of Regulation (EC) No. 733\/2002.\r\n\r\nFor all the foregoing reasons, in accordance with Paragraph B12(b) of the ADR Rules, the Panel orders the domain name to be transferred to Complainant.", "panelists": [ null ], "date_of_panel_decision": "2009-08-31 00:00:00", "informal_english_translation": "Complainant, a company specialized in the foodservice market, SligroFood Group Nederland B.V., requested the domain name to be transferred to Complainant on the grounds that Complainant had prior rights (trade name and trade mark rights) pursuant to Article 21 (1) of the Regulation (EC) No. 874\/2004 and that Respondent had no rights or legitimate interest in the domain name and had acted in bad faith, in accordance with Article 21 (1) (a) (b) of the Regulation (EC) No. 874\/2004.\r\n\r\nThe Panel has the opinion that Complainant has demonstrated that the domain name is confusingly similar to the trade name SLIGRO FOOD GROUP and identical to the Benelux word mark SLIGRO pursuant to Article 21 (1) of the Regulation (EC) No. 874\/2004.\r\n\r\nRespondent has submitted a deficient Response. The second Response filed by Respondent was not within the given deadline. Therefore, the Panel has the opinion that Respondent has not disputed the factual information that Complainant has provided in the Complaint.\r\n\r\nThe Panel found subsequently, that Complainant has demonstrated prima facie that Respondent has registered the Domain name without rights or legitimate interests. Finally, the Panel accepted Complainants’contention that Respondent has registered and used the Domain Name in bad faith.\r\n\r\nBased on the foregoing the Panel ordered the domain name to be transferred to Complainant.", "decision_domains": [], "panelist": null, "panellists_text": null }