UDRP Procedure - Ex-publisher loses rights to dirkjan.nl

Mark Retera (winner of the comic prize 2004) has been publishing the comic book Dirkjan since 1989. The main character Dirkjan has been registered as a trademark in the Benelux since 2013. The domain name DIRKJAN.NL has been registered in 1999 and acquired by defendant in 2011. In the period between 2004 and 2009 the defendant has published the comic. When the cooperation ceases, defendant refuses to transfer the domain name. The domain name redirects to defendant’s website, where he sells Dirkjan comics, but also other comics.

In a domain name conflict, a fast and relatively inexpensive procedure may be started with WIPO (the UDRP procedure). In case of a Dutch (.nl) domain name the plaintiff has to prove, 1) that the domain name is similar to a trademark 2) that the holder of the domain name does not have his own rights 3) that the domain name has been used or registered in bad faith.

Important in this matter is the fact that the domain name redirects to defendant’s website, where other products are also being sold. Defendant may just as easily sell the other comics as the actual Dirkjan ones. Therefore, the domain name dirkjan.nl is not essential.

Defendant furthermore does not have any right of his own on the domain name, and the use is in bad faith. The domain name therefore had to be transferred. We recommend that in order to prevent these type of conflicts that clear agreements are made on 1) whether domain names (and social media accounts) are to be registered by partners; 2) if yes, in whose name; 3) under the condition these must be transferred when parties split.

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MENTOS has been selling chewing gum under the name MENTOS PURE FRESH for several years. In order to protect her rights MENTOS has registered the following trademarks: the logo MENTOS PURE FRESH, the logo MENTOS PURE FRESH 3 and a figurative depiction of the word PURE. Defendant sells chewing gum under the trademark DENTYNE PURE and has registered its logo as a trademark. Infringement or not?
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