Westmore · UDRP DecisionDamste.com
The three-member Panel denied the Complaint. It found <damste.com> confusingly similar to the Complainant’s registered DAMSTÉ mark, differing only by omission of the accent over the letter “e”. The Panel did not reach rights or legitimate interests. It found that bad-faith registration and use had not been established because there was no evidence that the Respondent knew or was likely to have known of the Complainant when acquiring the domain. The evidence instead showed that Damsté was a reasonably common surname and that the domain formed part of the Respondent’s pattern of surname-domain holdings. There was also no use related to the Complainant’s legal-services industry, no proof that the domain was acquired specifically for sale to the Complainant, and no evidence of disruption to the Complainant’s business.
The timeline behind damste.com
Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.
The decision illustrates that a trademark-identical surname domain offered for sale and used for pay-per-click advertising does not, without more, establish UDRP bad faith. The decisive question was whether the Respondent targeted the Complainant when acquiring and using the domain. The surname meaning, the Respondent’s broader surname-domain portfolio, the absence of legal-services advertising, and the lack of evidence concerning the Complainant’s wider reputation collectively defeated that inference.
Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.
WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Damsté advocaten – notarissen v. Danny Sullivan Case No. D2017-1794 1. The Parties The Complainant is Damsté advocaten – notarissen of Enschede, the Netherlands, internally represented. The Respondent is Danny Sullivan of Pittsburgh, Pennsylvania, United States of America (“United States”), self-represented. 2. The Domain Name and Registrar The disputed domain name <damste.com> is registered with GoDaddy.com, LLC (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 15, 2017. On September 15, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 18, 2017, the Registrar 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 Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on September 25, 2017. In accordance with the Rules, paragraph 5, the due date for Response was October 15, 2017. The Response was filed with the Center October 13, 2017. The Center appointed Adam Taylor, Gregor Vos and Diane Cabell as panelists in this matter on November 9, 2017. The Panel finds that it was properly constituted. Each member of 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 Complainant, a Dutch law firm with offices in Amsterdam and Enschede, has traded under the name “Damsté” since 1960. It employs approximately 60 lawyers and civil notaries. The Complainant’s main website is located at “www.damste.nl”. The Complainant registered this domain name on November 1, 1999. The Complainant owns the following Benelux trade marks for the word DAMSTÉ: - no. 790242, filed on January 18, 2006, and registered on January 27, 2006, in classes 36 and 42; and - no. 973998, filed on December 17, 2014, and registered on July 3, 2015, in classes 35, 36, 41 and 45. According to the Response, the Respondent acquired the disputed domain name on November 30, 2016. At the time filing of the Complaint, the disputed domain name resolved to a parking page with Swedish-language pay-per-click links relating to clothing. The parking page also invited users (in English) to buy the disputed domain name and linked to a purchase enquiry form. Currently, the disputed domain name resolves to a website displaying ancestry-related pay-per-click links. The Complainant sent a cease and desist letter by email to the Respondent on July 14, 2017, to which the Respondent did not respond. 5. Parties’ Contentions A. Complainant A summary of the Complainant’s contentions is as follows: The Complainant’s trade marks are visually, phonetically and conceptually similar to the Complainant’s trade marks. There is no evidence that the Respondent has ever used the disputed domain name or any similar names. The Respondent does not operate a business or other organization which is commonly known by the disputed domain name. The Respondent is not making any legitimate fair use of the disputed domain name. It is only offering the disputed domain name for sale, inviting minimum bids of USD 5,000. The disputed domain name was registered primarily for the purpose of sale to the Complainant. The Respondent’s registration of the disputed domain name disrupts the Complainant’s business and website. The Complainant attempted to negotiate an amicable resolution with the Respondent. B. Respondent A summary of the Respondent’s contentions is as follows: The Respondent actively acquires generic domain names including at least 80 domain names which comprise surnames. The domain names are generally used for pay per click advertising and/or are offered for sale. The Respondent has in mind to create domain names with genealogical information relating to each surname but has not yet developed such a system. The Respondent decided to buy the disputed domain name because his search filters indicated that it reflected a fairly common surname, which generated some 2,600 historical documents relating to the surname “Damste” on “Ancestry.com”. The Respondent did not register the disputed domain name primarily for sale to the Complainant. The Respondent only became aware of the Complainant when it received the Complaint. The Complainant appears to be completely unknown in the United States. It is very likely that the Complainant does not operate outside the Netherlands or its surrounding region. There is no evidence otherwise and the Complainant only owns Benelux trade marks. A Google search shows that many third parties are using the name “Damste”. The disputed domain name was formerly owned by a Dr. P. Helbert Damste. Pending the Respondent’s eventual goal of developing his surname domain names into genealogy portals, the Respondent has used them for automated parking systems, which return advertising based on the words in the domain names. The advertisements on the disputed domain name do not relate to the Complainant’s services or promote any of the Complainant’s competitors. The Respondent’s use of a surname domain name for third-party advertising is legitimate. Following receipt of the Complaint, the Respondent configured the website to display only genealogy services in order to prevent manipulation. It is hard to believe that the Respondent’s website disrupted the Complainant’s business as there has only been a low number of visitors to the website. 6. Discussion and Findings A. Identical or Confusingly Similar The Complainant has established rights in the mark DAMSTÉ by virtue of its registered trade marks for that term. The Complainant’s mark is confusingly similar to the disputed domain name, which differs only by omission of the accent over the letter “e”. The Panel therefore finds that the Complainant has established the first element of paragraph 4(a) of the Policy. B. Rights or Legitimate Interests It is unnecessary to consider this second element in view of the Panel’s conclusion under the third element below. C. Registered and Used in Bad Faith In the Panel’s view, the Complainant has failed to establish registration and use in bad faith. In particular, there is no evidence that the Respondent knew or was likely to have been aware of the Complainant’s mark on acquisition of the disputed domain name. The Complainant has provided no evidence regarding the extent of its services or reputation outside Amsterdam and Enschede in the Netherlands. Whereas the Respondent has established that “Damsté” is a reasonably common surname and that the disputed domain name forms part of a pattern of other surname domain names owned by him. Certainly, there is nothing before the Panel which is suggestive of use of the disputed domain name by the Respondent in a manner related to the Complainant’s industry, namely legal services. Accordingly, the Complainant has not satisfied the Panel that the Respondent acquired the disputed domain name specifically for sale to the Complainant, as the Complainant alleges, rather than for sale to the world at large – which is unobjectionable. Nor is there any evidence to support the Complainant’s contention that the Respondent registered and used the disputed domain name to disrupt the Complainant’s business. The Panel therefore concludes the Complainant has failed to establish the third element of paragraph 4(a) of the Policy. 7. Decision For the foregoing reasons, the Complaint is denied. Adam Taylor Presiding Panelist Gregor Vos Panelist Diane Cabell Panelist Date: November 22, 2017
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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