WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Nutriset v. Private Registrations Aktien Gesellschaft Case No. D2010-0358 1. The Parties
The Complainant is Nutriset of Malaunay, France, represented by Tmark Conseils, France.
The Respondent is Private Registrations Aktien Gesellschaft, of Kingstown, Saint Vincent and the Grenadines. 2. The Domain Name and Registrar
The disputed domain name is registered with Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainR. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 9, 2010. On March 9, 2010, the Center transmitted by email to Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainR a request for registrar verification in connection with the disputed domain name. On March 11, 2010, Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainR 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 March 17, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was April 6, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on April 8, 2010.
The Center appointed Angelica Lodigiani as the sole panelist in this matter on April 19, 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. 4. Factual Background
The Complainant is the French company Nutriset, with offices in Malaunay, France.
Nutriset, which was created in 1986, is active in the field of nutrition mainly in developing countries, thanks to actions of humanitarian and social stakeholders such as non-governmental organizations and agencies of the United Nations.
Among Nutriset's products, is “Plumpy Nut”, which is a ready-to-use therapeutic food, especially designed for home treatment of severe malnutrition distributed via a network called Plumpy Nut in the Field.
The Complainant is the owner of the French trademark PLUMPY‘NUT IN THE FIELD, registration No. 3395856, filed on December 6, 2005, covering “dietetic substances for medical use; compressed intended for processing of diseases of children; food for babies” in class 5. A copy of the Complainant's trademark is attached as Annex 4 to the Complaint.
The disputed domain name was originally registered on March 24, 2005 in the Complainant's name. The Complainant renewed the disputed domain name until 2009. On May 5, 2009, the disputed domain name was registered in the name of a company called C. Subsequently, on October 2, 2009, the disputed domain name was registered in the Respondent's name. A document showing the different ownerships of the domain name is enclosed as Annex 5 to the Complaint. 5. Parties' Contentions A. Complainant
The Complainant states that the disputed domain name is identical to its French registration No. 3395856 for the trademark PLUMPY'NUT IN THE FIELD, covering goods in class 5.
According to searches on the Internet and on trademark registers, it appears that the Respondent has no rights or legitimate interests in the disputed domain name. The Complainant did not find evidence that the Respondent used or made preparations to use the disputed domain name in connection with a bona fide offering of goods or services, or that the Respondent is making a legitimate noncommercial or fair use of the disputed domain name.
The disputed domain name was registered and maintained in bad faith. The Respondent registered the disputed domain name on October 2, 2009, i.e., after the date of application of the Complainant's trademark, which is December 6, 2005.
The website corresponding to the disputed domain name contains links related to food and cooking. Presumably click-through revenue will be generated through such links. Accordingly, the Respondent registered the disputed domain name to intentionally seek to attract for commercial gain Internet users to its website by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation of the Respondent's website. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
On a direct comparison, the Panel finds the disputed domain name to be virtually identical and certainly confusingly similar to the Complainant's registered trademark PLUMPY'NUT IN THE FIELD.
Therefore the Panel is satisfied that the first requirement of the Policy is satisfied. B. Rights or Legitimate Interests
As proving a negative fact is a difficult if not impossible task, the complainant is only required to make up a prima facie case that the respondent lacks rights or legitimate interests in the domain name. Once such prima facie case is made, the respondent carries the burden of demonstrating rights or legitimate interests in the domain name.
In the case at issue, the Complainant stated that the searches he conducted on the Internet failed to reveal evidence that the Respondent used or made preparations to use the disputed domain name in connection with a bona fide offering of goods or services, or that the Respondent has been commonly known by the disputed domain name or is making a legitimate noncommercial or fair use of this domain name.
It is also clear that the Complainant never authorized the Respondent to reflect its trademark in a domain name registration.
As the Respondent failed to rebut the Complainant's assertions, the Panel takes the view that the Complainant's statements are true and sufficient to satisfy the requirement of paragraph 4(a)(ii) of the UDRP. C. Registered and Used in Bad Faith
According to the Policy, in order to satisfy the requirement under paragraph 4(a)(iii) of the Policy, the Complainant must prove that the disputed domain name was registered and used in bad faith.
The Panel finds that the Respondent registered a domain name identical to a trademark in which the Complainant enjoys earlier rights. Although the disputed domain name was originally registered before the date of application of the Complainant's trademark, at the time of the first registration of the disputed domain name registrant and trademark holder where the same entity. According to the submitted evidence, the Respondent acquired the disputed domain name only on October 2, 2009, i.e., more than 4 years after the filing date of the PLUMPY'NUT IN THE FIELD French trademark application.
The domain name is not a domain name that one registers accidentally. This domain name consists of the fanciful term “plumpy nut” followed by the expression “in the field”. It is therefore clear to the Panel that the Respondent did not register “plumpy nut in the field” as a domain name by accident, but having in mind the Complainant's identical mark.
Moreover, the website corresponding to the disputed domain name contains links to websites related to food and cooking. This is another circumstance showing that the Respondent knew the Complainant's trademark and activities when it acquired ownership on the disputed domain name.
Therefore, the Panel concludes that the Respondent registered the domain name in bad faith.
As far as use in bad faith is concerned, the Complainant has proved that the disputed domain name leads to a website containing links to companies active in the food and cooking fields. The contents of said links are therefore strictly related to the products for which the Complainant is using its PLUMPY'NUT IN THE FIELD trademark.
It is most likely, as the Complainant pointed out, that the Respondent generates revenues through these links. The Respondent, which had the opportunity to do so, did not object to this allegation. The Panel therefore takes the view that the Complainant has established circumstances indicating that the Respondent intentionally is using the disputed domain name in an attempt 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.
Therefore, the Panel concludes that the Respondent used the domain name 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 disputed domain name be transferred to the Complainant.
Angelica Lodigiani
Sole Panelist
Dated: April 29, 2010
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