WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Unilever PLC, Unilever N.V. v. Luca Mueller Case No. D2009-0672 1. The Parties
The Complainants are Unilever PLC, Merseyside, United Kingdom of Great Britain and Northern Ireland and Unilever N.V., Rotterdam, the Netherlands, represented by Redd Solicitors LLP, United Kingdom.
The Respondent is Luca Mueller, Unterfoehring, Germany. 2. The Domain Name and Registrar
The disputed domain name is registered with About Domain Dot Com Solutions Pvt. Ltd. d/b/a . 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 21, 2009. On May 22, 2009, the Center transmitted by email to About Domain Dot Com Solutions Pvt. Ltd. d/b/a a request for registrar verification in connection with the disputed domain name. On June 4, 2009, PublicDomainR, on behalf of About Domain Dot Com Solutions Pvt. Ltd. d/b/a 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on June 8, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was June 28, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on June 29, 2009.
The Center appointed William Lobelson as the sole panelist in this matter on July 1, 2009. The Panel finds that it was properly constituted. 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 Complainants (hereinafter the Complainant) in this proceeding, namely Unilever PLC and Unilever N.V., are the two parent companies of one of the largest consumer product corporations in the world. Unilever PLC and Unilever N.V. operate Unilever as a joint venture, and these three companies operate as the Unilever Group. The latter was formed in 1930 and currently employs over 174,000 people in around 100 countries. For the fiscal year ending, the Complainant had important worldwide sales of approximately 40 billion Euros.
Unilever PLC and Unilever N.V. are owners of UNILEVER trademark registrations respectively in the United Kingdom, in the European Union and the United States of America. The earliest of these registrations dates back to May 11, 1965.
The Complainant also owns various domain names incorporating their well-known UNILEVER trademark and including , registered in April 1995. The domain names are used to resolve to websites which provide information concerning Complainant and its products.
The disputed domain name was registered on July 27, 2007. The latter proposes online information on numerous categories and offers users search options so that it resolves to sponsored websites.
The Respondent was offered USD3,000 by the Complainant in return for the disputed domain name. Following the Respondent's refusal, the Complainant filed the present Complaint with the Center.
The Respondent has not filed any response to the Complaint and is therefore found in default. 5. Parties' Contentions A. Complainant
The Complainant contends that the disputed domain name is identical or confusingly similar with its trademarks, that the Respondent has no rights or legitimate interests in the disputed domain name and that the same was registered and is used in bad faith, in order to attract, for commercial gain, Internet users as well as to be the subject of speculative purposes. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
The Complainant has brought material evidence that it own trademark rights in the name UNILEVER.
The Panel is of the opinion that said mark is highly distinctive per se, on the ground that UNILEVER is coined and meaningless word and in view of the high level of notoriousness of said mark, as evidenced by the documents supplied by the Complainant in support of its claims.
The disputed domain name is .
The Complainant's earlier mark is entirely reproduced within the contested domain name. The addition of the common and generic term “service” is unlikely to cast away a risk of confusion in the public's mind between the Complainant's mark and the disputed domain name; on the contrary, the domain name chosen by the Respondent can only be perceived by the public as being a derivation of the brand UNILEVER, namely a domain name intended to resolve to a website where the Complainant presents and/or offers its own services.
The technical suffix “.com” being also irrelevant, the Panel is satisfied that the disputed domain name is confusingly similar with the Complainant's earlier trademark, in compliance with the requirements of paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
According to paragraph 4(c) of the Policy, the following circumstances can demonstrate that the Respondent has rights to or legitimate interests in the disputed domain name:
(i) before any notice was given to the Respondent of the dispute, the Respondent used, or demonstrably made 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; or
(ii) the Respondent (as an individual, business, or other organization) has been commonly known by the domain name, even though it has not acquired any trademark or service mark rights; or
(iii) the Respondent is making a legitimate non-commercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
The Complainant states that it is not related in any manner to the Respondent and that it has not authorized the latter to use or imitate its trademarks; that the Respondent has not been known and has not run any bona fide business under the disputed name.
It is a consensus view of WIPO UDRP panelists (see e.g. WIPO Overview of WIPO Panel Views on Selected UDRP Questions – and cases cited therein) that the overall burden of proof under paragraph 4(c) of the Policy rests with the complainant, which is required to establish that the respondent prima facie lacks any rights to, or legitimate interests in, the disputed domain name, and that if the respondent fails to answer such case, the complainant is deemed to have satisfied its burden of proof (Croatia Airlines d.d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455; Belupo d.d. v. WACHEM d.o.o., WIPO Case No. D2004-0110).
The Respondent has not denied any of the Complainant's assertions and has not brought any element showing that he has a right or legitimate interest in the disputed domain name.
The Panel observes that the disputed domain name resolves to a web page which does not seem to indicate that the Respondent would have any kind of trademark or trade name rights in the names “Unilever / Unileverservice” and which does not contain any apparent reference to bona fide commercial use of aforesaid name in the course of trade, nor indicate that the Respondent has been commonly known by the disputed domain name.
The Panel considers that there is no apparent element in the present case record which would justify a finding that the Respondent has rights or legitimate interests in the disputed domain name.
The Panel is therefore satisfied that the Respondent has no rights or legitimate interests in the disputed domain name, in accordance with the provisions of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
According to paragraph 4(b) of the Policy, the following circumstances, if found by the Panel, shall be evidence that the disputed domain name has been registered and used in bad faith if:
(i) circumstances indicating that the respondent has registered and has acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of the complainant, for valuable consideration in excess of the respondent's documented out-of-pocket costs directly related to the domain name; or
(ii) the respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the respondent has engaged in a pattern of such conduct; or
(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of the respondent's website or location or of a product or service on its website or location.
The Complainant has substantiated its contentions that its trademark UNILEVER is widely known and benefits from a high level of reputation and recognition among the public notably in the European Union, thus including Germany where the Respondent appears to be domiciled.
The Panel is therefore under the impression that the Respondent could not reasonably have been unaware of the Complainant's trademark rights in the name UNILEVER when it registered the disputed domain name. Such a registration was therefore requested in bad faith.
It also of relevance to notice that the Respondent refused to grant back the disputed domain name to the Complainant, notwithstanding a purchase offer of USD3,000, on the ground that said price was not high enough.
This reveals, in the Panel's view, that the Respondent has registered the same with a speculative intent, in bad faith.
Turning now to bad faith use, the disputed domain name is active and points towards a so-called “parking” website containing various sponsored links.
The Complainant sustains that some of those sponsored links point towards websites operated by its competitors and on which are offered goods that are identical to those covered by its trademarks, and provides an example with websites dedicated to toothbrushes.
As the Complainant points out in its own memorandum, users are able to conduct a search on the contested parking page against their own key words. The Complainant in fact searched for the keyword “toothbrush” and thus got a list of websites related to such products.
But the Panel is to observe that indeed, the parking page that spontaneously opens when the disputed domain name is activated does not contain any category that appears to be related to the Complainant's business.
Anyway, this well known practice of domain name parking enables the domain name holder not only to speculate by the possible sale of the same, but also to collect a financial remuneration proportional to the number of connections to the parking website and activated sponsored links operated through the parked domain name.
In the present case, the Respondent does not make any legitimate use of the disputed domain name; it has simply parked the same with an apparent view to selling it and meanwhile, benefits from the notoriousness and goodwill vested in the Complainant's marks by attracting the public to a website with sponsored links. Hence, not only does the Respondent apparently get financial gains out of the Complainant's marks, but it also possibly divert the Complainant's potential customers.
As determined by prior UDRP decisions, parking a domain name in such a manner for financial gain is common among cyber-squatting cases and demonstrates bad faith on the part of the Respondent. (See, e.g., Deloitte Touche Tohmatsu v. Henry Chan,WIPO Case No. D2003-0584; Maplin Electronics Limited v. Lee Jeongsoon,WIPO Case No. D2006-0011).
The Panel finds therefore that the Respondent has deliberately adopted and used the disputed domain name in order to take advantage of the fame and goodwill of the Complainant's trademark, with a view to attracting the Complainant's actual and potential customers to sponsored links and thus make business and financial gains to the detriment of the Complainant, as per paragraph 4(b)(iv) of the Policy. (See, e.g., Nora Baumberger v. SAND WebNames – For Sale,WIPO Case No. D2001-0502; Microsoft Corporation v. MindKind,WIPO Case No. D2001-0193 ; L'Oréal, Biotherm, Lancôme Parfums et Beauté & Cie v. Unasi, Inc,WIPO Case No. D2005-0623 [cited by the Complainant]).
The Panel is therefore satisfied that the disputed domain name was registered and is also used in bad faith, in accordance with paragraph 4(a)(iii) of the Policy. 7. Decision
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name be transferred to the Complainant.
William Lobelson
Sole Panelist
Dated: July 13, 2009
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