WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION The Procter & Gamble Company v. N Case No. D2010-0357 1. The Parties
The Complainant is The Procter & Gamble Company of Cincinnati, Ohio, United States of America, represented by Studio Barbero, Italy.
The Respondent is N of Anyang, Gyeonggi-Do, Republic of Korea. 2. The Domain Name and Registrar
The disputed domain name (the “Disputed Domain Name”) is registered with GoD, Inc. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 9, 2010. On March 11, 2010, the Center transmitted by email to GoD, Inc. a request for registrar verification in connection with the Disputed Domain Name (an earlier email transmission on March 9 having failed). On March 11, 2010, GoD, Inc. transmitted by email to the Center its verification response, confirming that the Respondent is listed as the registrant and providing the contact details. On March 12, 2010, following certain email exchanges on March 9, 10 and 11 with the Respondent's administrative contact, the Complainant filed an amendment to section IX of the Complaint in relation to mutual jurisdiction. The Center verified that the amended 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”). All references hereafter to the Complaint are to the Complaint as amended.
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 March 12, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was originally April 1 but, owing to the Center having omitted to email the Respondent at the email address set out in the WhoIs registration, the Center re-emailed the Respondent at that address and extended the time within which to file a Response until April 26, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on April 27, 2010.
The Center appointed Philip N. Argy as the sole panelist in this matter on May 5, 2010. 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.
All other procedural requirements appear to have been satisfied. 4. Factual Background
There being no Response the following salient facts, taken from the Complaint, remain uncontested.
The Complainant owns numerous European and Scandinavian trademark registrations for ANTIKAL, the earliest of which appears to date from February 26, 1996 in Germany.
As of the Fourth Quarter of 2008, the Complainant was the fifth largest corporation in the world by market capitalization. ANTIKAL is a brand of household cleaner manufactured by the Complainant and used extensively by consumers in Germany, Austria, Benelux, France, Switzerland and in many other countries.
In order to increase the protection of its trademark ANTIKAL on the Internet, the Complainant registered the word “antikal” as a domain name under several different gTLDs and ccTLDs. The domain names registered by the Complainant include, amongst others, , registered on May 17, 2004, , registered on May 26, 2004, , , and . The Complainant and its subsidiaries operate web sites associated with these domain names where the products and services offered under the ANTIKAL trademark are promoted. Furthermore, the trademark ANTIKAL was and is currently supported by extensive advertising campaigns both on and off-line and the Complainant has invested substantial amounts of time, money, and other resources to promote, advertise, and otherwise maintain the ANTIKAL trademark and its associated products and services through television and other media. As a consequence of these and other matters, ANTIKAL is an indisputably famous and well-known trademark.
The Disputed Domain Name was registered on August 13, 2004, some eight years after the launch of the trademark ANTIKAL, without obtaining authorization from the Complainant. At the time of the Complaint, the domain name resolves to a web site where a number of sponsored links, some of which are related to various “adult content” web sites, can be found. A “sponsored link” is a link placed on a web site that generates revenues for the registrar [sic] and/or for the domain name holder when users click on it. Therefore, the Disputed Domain Name exposes Internet users to, amongst others, dating web sites, to which they are redirected by clicking on pay-per-click links referring to sex related content, such as “Sesso gratis” (“Free sex” in English), “Lesbiche” (“Lesbian” in English), “Trans”, “Video Porno Gratis” (“Free porn video” in English). In light of the flourishing market for pornographic content on line, this type of link is considered the most financially rewarding in terms of potential pay-per-click revenues.
(The Panel declines to reproduce in these reasons the salacious examples provided with the Complaint, but they are corroborative of the above general description!).
On or about September 23, 2009 the Complainant's representative received an email from the Respondent's administrative contact to the following effect:
“Thanks for your interest in my domain name. How about the price of 20000$ [sic]. The price can be controlled by negotiation between you and me. Thank you. J H Kim”
The Respondent is also the owner of domain names like , , , and , confusingly similar to the registered and well-known trademark PHILIPS, which is redirected by the Respondent to a parking page with commercial links.
Despite a cease and desist letter and numerous follow up communications, the Respondent continued to use the Disputed Domain Name and ignored the Complainant's communications apart from one reply that comprised in its entirety three question marks. 5. Parties' Contentions A. Complainant
The Disputed Domain Name is identical to the registered trademark ANTIKAL in which the Complainant has rights.
The Respondent has not provided any evidence of its use of, or demonstrable preparations to use, the Disputed Domain Name in connection with a bona fide offering of goods or services before any notice of the dispute. The Complainant's trademarks are distinctive for household cleaners and well-known; therefore the Respondent is intentionally profiting from the Complainant's well-known trademarks. The use of the Disputed Domain Name via a redirection to the web page currently on line where services of third parties are advertised and sponsored links are published is not to be considered a legitimate noncommercial or fair use of the Disputed Domain Name, without intent for commercial gain particularly in view of the fact that the Respondent and/or the Registrar are certainly gaining, for example, from the click-through commissions on the sponsored links.
The Respondent is not a licensee or authorized agent of the Complainant, nor in any other way authorized to use the Complainant's trademark ANTIKAL. The Respondent is not commonly known by the Disputed Domain Name as an individual, business or other organization and ANTIKAL is not the Respondent's family name. The Respondent has not provided any evidence of its use of, or demonstrable preparations to use, the Disputed Domain Name in connection with a bona fide offering of goods or services before any notice of the dispute. The Disputed Domain Name points to a website consisting of a page displaying sponsored links which generate revenues via the pay-per-click system and, at the same time, is tarnishing the Complainant's trademark.
The Respondent was or ought to have been aware of the Complainant's trademark when it registered the Disputed Domain Name and it must be taken to have done so in bad faith only to profit from the reputation of the Complainant. Paragraph 4(b)(i) of the Policy is applicable since the Disputed Domain Name was registered for the purpose of selling it to the Complainant for an amount well in excess of the documented out-of-pocket costs. The Complainant deems paragraph 4(b)(iv) of the Policy also applicable to the present case since the Respondent intentionally attracted Internet users for commercial gain to the Respondent's web site by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of the Respondent's web site. B. Respondent
The Respondent did not file any formal Response. However, as indicated above, it did engage in brief email exchanges with the Complainant after becoming aware of the imminent commencement of these proceedings. Although the Respondent's administrative contact asked the Complainant to communicate with it in the Korean language, the Panel is satisfied having regard to the English language used on the web site to which the Disputed Domain Name resolves as well as to the email exchanges themselves, that the Respondent is not at any relevant disadvantage by having these proceedings conducted in English (which is also the language of the registration agreement with GoDaddy,com, Inc.).
Without setting out the text in full, the Respondent essentially consented to the transfer of the Disputed Domain Name upon payment of USD 2,500, which the Complainant declined. The Respondent's communication indicated that it became the registrant of the Disputed Domain Name as a result of a policy of registering expired domain names and it also acknowledged that in some cases this can give rise to trademark issues and that it was familiar with the Policy and proceedings under it. 6. Discussion and Findings A. Identical or Confusingly Similar
The Panel has no difficulty observing that the Disputed Domain Name is relevantly identical to the Complainant's registered trademarks for the invented word ANTIKAL, and the Panel so finds. B. Rights or Legitimate Interests
The communications from the Respondent referred to in section 3 above, after it was made aware of the lodgment of the Complaint, whilst blusteringly denying the Complainant's right to bring these proceedings, in fact concedes that the Disputed Domain Name ought to be transferred to the Complainant, albeit on payment of a fee that by the time of the Response had reduced to USD 2,500.
The Respondent recites no facts from which the Panel might be able to discern any rights or legitimate interests in the Disputed Domain Name, and the Respondent's conduct suggests otherwise. The Panel finds that the Respondent has no such rights or legitimate interests. C. Registered and Used in Bad Faith
The Panel upholds each of the Complainant's contentions. Whilst there may be a view that the indiscriminate methodical registration of dropped domain names is plausibly a good faith exercise, here there is no evidence that the Respondent did other than to cherry pick such dropped domain names as it determined might generate traffic to its site and thereafter result in it earning pay-per-click revenue by a visitor clicking on the various links there located. Whether it did this by domain tasting or by a more methodical review of trademarks is not known, but even drawing the most favorable inference to the Respondent, the lack of a Response or any other evidence of good faith conduct leaves the Panel with little room to move in the face of the Complainant's compelling submissions.
In this Panel's view, domain names whose sites have no raison d'être other than domain monetization are the Internet equivalent of a public nuisance and can never in and of themselves be considered good faith noncommercial conduct. Their utility to the site or domain name owner relies entirely on visitors having been attracted there by use of a domain name that is identical or confusingly similar either to someone else's trademark or to a domain name which points to a legitimate site, or to the site acting as a faux portal. This Panel considers it tantamount to hijacking of the Domain Name System. Similarly, search engines that list such sites are doing a disservice to the Internet community as the sites have no intrinsic value and are highly unlikely to be relevant to any search that a user may have conducted. If domain parking pages and domain monetization sites were removed from search retrieval lists or relegated to the end of any search results listing the commercial incentive for the majority of cybersquatting would very likely be removed. In an ideal world this is an area that ICANN might usefully explore, but the power of vested interests probably makes that an unlikely course.
The Panel in any event finds that the Disputed Domain Name was both registered and is being used in bad faith. 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.
Philip N. Argy
Sole Panelist
Dated: May 25, 2010
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