WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Avon Products, Inc. v. Tebix Creative, Temidayo Oyebade Case No. D2010-0669 1. The Parties
The Complainant is Avon Products, Inc. of New York, United States of America, represented by Kilpatrick Stockton, LLP, United States of America.
The Respondent is Tebix Creative, Temidayo Oyebade of Lagos, Nigeria. 2. The Domain Name and Registrar
The disputed domain name is registered with The Registry at Info Avenue, LLC d/b/a Spirit Telecom. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 28, 2010. On April 28, 2010, the Center transmitted by email to The Registry at Info Avenue, LLC d/b/a Spirit Telecom a request for registrar verification in connection with the disputed domain name. On May 3, 2010, The Registry at Info Avenue, LLC d/b/a Spirit Telecom 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 May 4, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was May 24, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on May 25, 2010.
The Center appointed David Levin Q.C. as the sole panelist in this matter on May 31, 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 owns approximately 35 United States federal trademark registrations and over 4,000 trademark registrations in over 118 other countries throughout the world for the AVON marks, including in Europe, Asia, Africa, and Latin America.
In 1997, the Complainant launched its own web site at “” for the advertising and online sale of its AVON products. The Complainant also owns and uses a number of other Internet domain names for active web sites that include the AVON mark, including, inter alia, , , and , as well as numerous country specific domain names, such as , , , , , and .
It also operates a web site at “” through which it promotes its products and services in South Africa and regionally. 5. Parties' Contentions A. The Complainant
By its Complaint, the Complainant maintains that the disputed domain name is identical or confusingly similar to trademarks or service marks in which it has rights. It maintains that the disputed domain name is made up of the word “avon” which is confusingly similar to its marks which it has used since 1929 to identify its products. Furthermore it claims that the disputed domain name is confusingly similar to the domain name registered by the Complainant since 1997, namely .
The Complainant further contends that the disputed domain name is identical to the Complainant's own domain name, , the domain names reflecting the Complainant's company name, and the more than 4,000 trademark registrations around the globe, save for the addition of a geographic locator, ‘Nigeria'. It maintains that this distinction is of no relevance in differentiating the Respondent's domain name from those of the Complainant: confusion remains.
The Complainant also contends that the Respondent has never been, and is not currently, commonly known by the disputed domain name. The name of the Respondent does not relate in any way to the name AVON nor is its business somehow connected with the products of the Complainant. Further the Respondent does not hold any trademark or right consisting in whole or in part of the word “avon”. The Complainant contends that the Respondent is not making a legitimate noncommercial or fair use of the domain name but on the contrary has been attracting Internet users by explicitly mentioning the trademarks owned by the Complainant.
Finally the Complainant contends that the disputed domain name is registered and is being used in bad faith contrary to UDRP paragraphs 4(a)(iii) and 4(b). It supports this contention with a series of propositions supported by evidence which suggest that the registration was indeed undertaken in bad faith and the domain name is currently being so used. For example, at one time when an Internet user typed into a browser the Respondent's domain name, the user was connected to the homepage of “AVON Nigeria: The Company for Women,” which claims that “working with Avon Nigeria has lots of benefits and opportunities.” The web site at the domain name carefully mimics the web sites owned by the Complainant for its products and services. In claiming to offer users an opportunity to become an Avon Nigeria Representative, a great deal of personal information was sought, together with a $10 fee that “will go towards intensive training that you will receive upon becoming a member”.
The domain name was registered on January 5, 2010. On the site the Respondent has created web pages reproducing, in whole or in part, web pages from “”. The Complainant maintains that although the Respondent has no connection to or authorization from Avon, it is attempting to fraudulently pass itself off as the Complainant by posting false information throughout its web site at the domain name . For example, the Respondent repeatedly referred to itself on the web site at the domain name using the AVON name, mark, and company tagline, i.e. “AVON Nigeria: The Company for Women.” Throughout the web pages at the web site at the domain name the Respondent also referred to itself as “AVON Nigeria,” emphasizing the AVON name and mark. Further, the Respondent invited applications from persons interested in becoming ‘Representatives', thereby using the Complainant's marks to gain names and addresses for its own commercial purposes. B. The Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
The Panel accepts that the AVON mark and name has acquired a high degree of public recognition and distinctiveness as a symbol of the source of high quality services offered by the Complainant, and embodies valuable reputation and goodwill belonging exclusively to the Complainant. It is today one of the world's largest direct sellers of beauty and related products and one of the largest global beauty companies in the world. Its products are currently sold in more than 100 countries across the world, including countries in Africa. Since 1929, the Complainant has continually used the AVON marks to identify its products. Further, the Complainant is well-known throughout the world for undertaking some of its marketing through independent Representatives. Indeed the Complainant maintains that it engages with more than 5.8 million independent Avon Sales Representatives. A. Identical or Confusingly Similar
The Panel determines that the Respondent's domain name is confusingly similar to the Complainant's well-known AVON mark, in accordance with UDRP paragraph 4(a)(i). It fully incorporates the mark AVON exactly and in its entirety. See PepsiCo, Inc. v. PEPSI, SRL (a/k/a P.E.P.S.I.) and EMS Computer Industry (a/k/a EMS),WIPO Case No. D2003-0696 (“incorporating a trademark in its entirety can be sufficient to establish that a domain name is identical or confusingly similar to a registered trademark”). The mere addition of the country name “Nigeria” does not dispel the risk of confusion, and does not sufficiently differentiate the disputed domain name from the Complainant's trademark. See Avon Products, Inc. v. Jongsoo Lee,WIPO Case No. D2001-0272.
Even taking into account the country suffix as a separate element in the domain name, AVON is the more distinctive element and as such supports a finding of confusing similarity to the Complainant's mark. Moreover, Internet users would assume that the Respondent's site is related to the Complainant: the products displayed, the appearance of the web pages and the use of words such as “Change your life with the world's largest direct seller! Become an Avon Nigeria Representative now” reinforce the confusion.
Accordingly, the Panel finds that the disputed domain name is confusingly similar to the Complainant's registered trademark, and that the first element of UDRP paragraph 4(a) is satisfied. B. Rights or Legitimate Interests
Given that the Complainant's AVON marks are so well-known and recognized throughout the world, it is difficult to conceive of any rights or legitimate use by the Respondent. See for example, Nike, Inc. v. B. B. de Boer,WIPO Case No. D2000-1397. The Complainant has provided arguments and evidence to demonstrate its prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name.
In any event the Respondent has advanced no contention supporting any claim of rights or legitimate interests in the domain name, and thus has not rebutted the Complainant's prima facie case. It has no relationship with the Complainant giving rise to any license, permission, or other right by which the Respondent could own or use the disputed domain name which incorporates the Complainant's AVON marks, nor is the domain name a name by which the Respondent claims to be known or identified. In all of the circumstances the Panel finds that the Respondent has no rights or legitimate interests in the in accordance with UDRP paragraph 4(a)(ii). C. Registered and Used in Bad Faith
The Panel finds that the disputed domain name is registered and is being used in bad faith contrary to UDRP paragraph 4(a)(iii).
The Respondent has sought to profit by using the disputed domain name to promote itself and its products and related services by piggy-backing on the goodwill associated with the Complainant's AVON marks. At the very least, the Respondent's bad faith registration of the domain name is established by the fact that the domain name is used in an apparent attempt to pass itself off as a legitimate distributor of AVON products in Nigeria, which the Panel finds it is not.
At one time, when an Internet user typed into a browser the address of the domain name, the user was connected to the homepage of “AVON Nigeria: The Company for Women,” which claimed that “working with Avon Nigeria has lots of benefits and opportunities.” The web site at the domain name carefully mimicked the web sites owned by Avon for its products and services. For instance, the display of the AVON mark on the web site was identical to that used by Avon for its web site and the photographs appear to the Panel to be copies of the types of photographs used on Avon's web sites.
The Respondent sought to obtain financial gain by charging a fee for users to become Avon Nigeria Representatives. The Panel finds that users responding to the invitation would, in all probability, have been deceived into believing that they were becoming Representatives for the Complainant.
Accordingly, the Panel finds that the Respondent has registered and used the disputed domain name in bad faith, and that the third element of UDRP paragraph 4(a). 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.
David Levin Q.C.
Sole Panelist
Dated: June 10, 2010
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