WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Stichting Menzis Beheer / AnderZorg N.V. v. Robert Roller, Webzone Capital Inc.

Case No. DNL2018-0044

1. The Parties

The Complainant is Stichting Menzis Beheer of Wageningen, the Netherlands / AnderZorg N.V. of Groningen, the Netherlands, represented by KienhuisHoving advocaten en notarissen, the Netherlands.

The Respondent is Robert Roller, Webzone Capital Inc. of Panama, Panama.

2. The Domain Name and Registrar

The disputed domain name <mijnanderzorg.nl> is registered with SIDN through Gransy s.r.o. d/b/a/ subreg.cz.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on July 17, 2018. On the same day, the Center transmitted by email to SIDN a request for registrar verification in connection, with the disputed domain name. On July 18, 2018, SIDN transmitted by email to the Center its verification response confirming that the 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 the Respondent of the Complaint, and the proceedings commenced on July 20, 2018. In accordance with the Regulations, article 7.1, the due date for Response was August 9, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on August 13, 2018.

The Center appointed Willem Hoorneman as the panelist in this matter on August 24, 2018. The Panel finds that it was properly constituted. 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.

4. Factual Background

The Complainant is a Dutch health insurance company and is holder of various trademarks comprising the words and/or figurative representation of ANDERZORG.

Among these trademark registrations, the following trademarks designate the Netherlands: European Union trademark registration no. 003804531 (registered in November 18, 2005); Benelux trademark registration no. 0785346 (registered in April 6, 2006); Benelux trademark registration no. 0785347 (registered in April 6, 2006); Benelux trademark registration no. 0785348 (registered in April 6, 2006); Benelux trademark registration no. 0874725 (registered in April 12, 2010); Benelux trademark registration no. 0933207 (registered in May 10, 2013); Benelux trademark registration no. 0725554 (registered in October 7 2002); Benelux trademark registration no. 0806278 (registered in November 7, 2006); Benelux trademark registration no. 0729694 (registered in January 13, 2003) and Benelux trademark registration no. 0931192 (registered in April 10, 2013). All these above mentioned trademarks comprise a combination of ANDERZORG with another word/figurative element. Further, the European Union registration 003804531 and Benelux registration 0725554 exist, both only comprising the word ANDERZORG.

Hereinafter, the above trademarks are collectively being referred to as "Trademarks".

Furthermore, the Complainant is the registrant of the domain name <anderzorg.nl.>

The Domain Name was registered by the Respondent on May 4, 2015, and resolves to a website containing sponsored links relating to inter alia health insurances.

5. Parties' Contentions

A. Complainant

The Complainant is the rightful holder of the Trademarks. The Domain Name infringes its Trademarks and trade name by incorporating the Trademarks and trade name ANDERZORG entirely. The Complainant asserts that the registration of the Domain Name by the Respondent prevents the Complainant from using the Domain Name for its customer portal.

The Complainant further asserts that the Respondent has no rights or legitimate interests in the Domain Name, as the Respondent appears not to own or use any trade name, trademark, personal name or name of an association or foundation relating to "mijnanderzorg".

Moreover, the Complainant claims that the use of the Domain Name by the Respondent is in bad faith. Firstly, the Complainant asserts that the Domain Name has been or is being used for the purpose of disrupting the Complainant's activities, because the Domain Name contains links to websites of competitors of the Complainant. Secondly, the Complainant claims that the Respondent probably profits by doing so. Finally, the Complainant submits that the Respondent's registration and use of this confusingly similar Domain Name may have a negative impact on the protection of sensitive personal data.

B. Respondent

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

6. Discussion and Findings

Pursuant to article 2.1 of the Regulations, to be successful the Complainant's request to transfer the Domain Name must meet three cumulative conditions:

a. The Domain Name is identical or confusingly similar to a trademark or trade name protected under Dutch law in which the Complainant has rights, or other name by means of article 2.1(a) under II of the Regulations; and

b. The Respondent 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 Respondent may demonstrate such rights or legitimate interests on its part, inter alia,through the circumstances mentioned in article 3.1 of the Regulations as listed below.

The Complainant may provide evidence that the Domain Name has been registered or is being used in bad faith, inter alia,through the circumstances mentioned in article 3.2 of the Regulations as listed below.

As the Respondent has not filed any response, the Panel shall rule on the basis of the Complaint. In accordance with article 10.3 of the Regulations, the Complaint shall in that event be granted, unless the

Panel considers it to be without basis in law or in fact.

A. Identical or Confusingly Similar

The Complainant has provided copies of its registered Trademarks.

It is established case law under the Regulations that the country code Top-Level Domain ("ccTLD") ".nl" may be disregarded in assessing the confusing similarity between the domain name on the one hand, and the relevant trademark on the other hand (see: Taylor Made Golf Company, Inc. v. Lotom Group S.A., WIPO Case No. DNL2010-0067; Roompot Recreatie Beheer B.V. v. Edoco LTD, WIPO Case No. DNL2008-0008).

The Domain Name is confusingly similar to the Trademarks as it incorporates these entirely. The Domain Name differs only in that the prefix "mijn" has been added to the term "anderzorg". This addition does not prevent a finding of confusing similarity as "anderzorg" remains the dominant element. It is established case law that the mere addition of a descriptive element (in this case: "mijn", meaning "my" in Dutch) before or after a trademark is insufficient to distinguish or differentiate the disputed domain name from the complainant's trademark.

In addition, the Panelist agrees with the Complainant that it is current practice for companies to offer a personalized online environment to customers by using a disputed domain name that comprises the trademark of a company preceded by the word "mijn".

In conclusion, the Panelist finds that the Domain Name is confusingly similar to the Trademarks within the meaning of the Regulations. The Complainant has thus established the first element of article 2.1 of the Regulations.

B. Rights or Legitimate Interests

According to established case law, the Complainant needs to show prima facie that the Respondent has no rights to or legitimate interests in the Domain Name (see LEGO Juris A/S v. Moensch, WIPO Case No. DNL2009-0052).

While the overall burden of proof rests with the complainant, previous panels have recognized that this could result in the often impossible task of proving a negative, requiring information that is often primarily within the knowledge of the respondent. Therefore a complainant is required to make out a prima facie case that the respondent lacks rights or legitimate interests in a domain name. Once such prima facie case is made, a respondent carries the burden of demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such appropriate allegations or evidence, the complainant is generally deemed to have satisfied the second element of article 2.1 of the Regulations (see, Schleich GmbH v. Ligteringen, M, WIPO Case No. DNL2018-0033).

A respondent may demonstrate such rights or legitimate interests on its part inter alia through any of the following non-limitative circumstances listed in article 3.1 of the Regulations:

a. before having any notice of the dispute, the respondent 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;

b. the respondent as an individual, business or other organization is commonly known by the domain name;

c. the respondent is making a legitimate noncommercial use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish or otherwise damage the relevant trademark, trade name, personal name, name of a Dutch public legal entity or name of an association or foundation located in the Netherlands.

The Respondent has not provided any evidence that it is known by the name "mijnanderzorg".

Noting the asserted facts, the Panel finds that the Complainant has made out a prima facie case that the Respondent lacks rights or legitimate interests in the Domain Name.

The Respondent has failed to address the Complainant's prima facie case, and the Panel sees no indication of the Respondent meeting any of the above mentioned circumstances or any other basis for a right to or legitimate interest in the Domain Name.

Based on the foregoing, the Panel is of the opinion that the Complainant has met the conditions of article 2.1 of the Regulations and has shown that the Respondent has no rights to or legitimate interests in the Domain Name.

C. Registered or Used in Bad Faith

Article 3.2 of the Regulations provides that any of the following non-limitative circumstances are deemed to be evidence that a respondent has registered and is using a domain name in bad faith:

(a) the domain name has been registered or acquired primarily for the purpose of selling, renting or transferring it to the complainant or to the complainant's competitors for valuable consideration in excess of the cost of registration;

(b) the domain name has been registered in order to prevent the complainant from using it;

(c) the domain name has been registered primarily for the purpose of disrupting the complainant's activities;

(d) the domain name has been or is being used for commercial gain, by attracting Internet users to a website of the registrant or other online location through the likelihood of confusion which may arise with the trademark, trade name, personal name, name of a Dutch public legal entity or name of an association or foundation registered in the Netherlands as to, for example, the source, sponsorship, affiliation or endorsement of the website of the registrant or other online location(s) or of products or services on the domain registrant's website or another online location.

The Trademarks significantly predate registration of the Domain Name by the Respondent. The Respondent is most likely to have known of the Complainant, its products/services and the Trademarks prior to registering the Domain Name.

The facts, notably the use of the Domain Name to offer sponsored links to the Complainant's competitors, clearly shows the Respondent's bad faith, who has no genuine connection with the term "mijnanderzorg".

The Panelist finds that the Domain Name has been registered and is being used in bad faith.

7. Decision

For all the foregoing reasons, in accordance with articles 1 and 14 of the Regulations, the Panel orders that the domain name <mijnanderzorg.nl> be transferred to the Complainant.

Willem Hoorneman
Panelist
Date: September 11, 201