The Complainant is Société des Produits Nestlé S.A. (“Nestlé SA”), Vevey, Switzerland, represented by Studio Barbero, Italy.
The Respondent is Vyacheslav Chistovich, Moscow, Russian Federation. 2. The Domain Name and Registrar
The disputed domain name is registered with 1API GmbH (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 11, 2012. On October 11, 2012, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 12, 2012, the Registrar 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 October 17, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was November 6, 2012. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 9, 2012.
The Center appointed Christos A. Theodoulou as the sole panelist in this matter on November 28, 2012. 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 in these proceedings is Société des Produits Nestlé S.A., a company organized under the laws of the Switzerland and founded in 1866. The Complainant has a worldwide reputation in, among others, food products, chocolate and confectionery, beverages, dairy products also in the pharmaceutical and pet care industries with an international presence in more than 200 countries according to its uncontested allegations.
Further, according also to its uncontested allegations, Nestlé SA has over 283,000 employees and is among the Fortune magazine’s 500 largest companies in the world.
The Complainant is the owner of many national and international trademark registrations, among which, International registrations of NESTLE (word and device mark), which are extended to the Russian Federation, registered since 1980 and onwards. Further, it has international registrations, also extended to the Russian Federation, for NESTLÉ HEALTH SCIENCE (word and device mark), registered since 2011, and Swiss trademark registrations for NESTLÉHEALTHSCIENCE (figurative mark) since 2010.
The Complainant also owns several domain name registrations for the word “Nestlé”. Further, according to the Complainant’s uncontested allegations it is using the domain name to promote its new institute which it founded under this name in September 2010.
The Panel is unaware of any further information relative to this case with regards to the Respondent, except that which is given by the Complainant and mentioned above.
The disputed domain name was registered on January 3, 2012. It resolves to website with sponsored links that offer products and services in competition with those products and services offered by the Complainant and/or the Complainant’s products and services are offered for sale without its authorization. 5. Parties’ Contentions A. Complainant
The Complainant contends that the disputed domain name is identical or confusingly similar to trademarks or service marks in which the Complainant has rights, that the Respondent has no rights or legitimate interests in the disputed domain name and has not been commonly known by the disputed domain name and that the Respondent registered and is using the disputed domain name in bad faith. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
Before engaging in the threefold discussion of paragraph 4(a) of the Policy, the Panel will briefly address the procedural issue relating to the default of the Respondent. The implications of a default in this case are telling since the Complainant has the burden of proof, according to paragraph 4(a) of the Policy (“In the administrative proceeding, the complainant must prove that each of these three elements are present”). As such, the Panel can not merely grant the Complainant’s request automatically due to the default, but it has to examine instead the evidence presented to determine whether or not the Complainant has proved its case, as required by the Policy. See FNAC v. Gauthier Raymond,WIPO Case No. D2004-0881; Sonofon A/S v. Vladimir Aleksic,WIPO Case No. D2007-0668; Gaudi Trade SpA v. Transure Enterprise Ltd,WIPO Case No. D2009-1028.
The Panel shall now proceed to the analysis of the evidence in this case, based on the three elements of paragraph 4(a) of the Policy. A. Identical or Confusingly Similar
The Complainant has presented evidence to demonstrate that it owns rights in the trademark NESTLÉ in the Russian Federation and in many countries all over the world as also in the trademark NESTLÉ HEALTH SCIENCE.
The mere fact that the Respondent has added to the mark NESTLÉ the words “health”, “sciences” and the suffix “.com” does not to this Panel affect the essence of the matter: the disputed domain name is identical or confusingly similar to the trademark of the Complainant and, in the circumstances of this case, is by itself sufficient to establish the criterion of identity or confusing similarity for purposes of the Policy, as many UDRP panels have found in the past, see e.g., Oki Data Americas, Inc. v. ASD, Inc.,WIPO Case No. D2001-0903; Koninklijke Philips Electronics N.V. v. K. Harjani Electronics Ltd.,WIPO Case No. D2002-1021; DFDS A/S v. NOLDC INC,WIPO Case No. D2006-1070; American Automobile Association, Inc. v. Bladimir Boyiko and Andrew Michailov,WIPO Case No. D2006-0252.
Further, the Complainant owns Swiss trademark registrations for NESTLÉHEALTHSCIENCE.
In view of the above, the Panel finds that the Complainant has discharged its burden of proof on this point and holds that the disputed domain name is identical or confusingly similar to the Complainant’s trademark NESTLÉ and NESTLEHEALTHSCIENCE B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides a non-exhaustive list of three circumstances which, if found by a panel to be proved based on its evaluation of the evidence presented, shall demonstrate a registrant’s right to and the legitimate interest in a domain name. These examples are discussed in turn below, with regard to the specific facts of this case.
(i) Use or demonstrable preparations to use the disputed domain name in connection with a bona fide offering of goods or services prior to the dispute. In the Panel’s view, the Respondent is not using the disputed domain name to make any bona fide offering of goods or services, in light of the prominent use of the Complainant’s marks throughout the website at the disputed domain name. Moreover, the website at the disputed domain name does not accurately and prominently disclose the Respondent’s relationship with the Complainant. Further, without the Complainant’s authorization, the Respondent offers for sale its products and services along with competitors’ products.
(ii) An indication that the Respondent has been commonly known by the disputed domain name, even if it has acquired no trademark rights. In this case, there is no such indication from the present record.
(iii) Legitimate noncommercial or fair use of the disputed domain name without intent for commercial gain to misleadingly divert consumers or to tarnish the trademarks at issue. Again, in this case there is no such indication from the record, given the apparent commercial use of the website.
Further the Respondent does not seem to have any trademark registrations including the term “Nestlé”.
Additionally, it is to be noted that the Respondent did not present evidence of any license by the Complainant, with whom there seems to exist no relationship whatsoever.
As a conclusion on this point, the Panel finds that the Complainant has established an uncontested, prima facie case that the Respondent has no rights or legitimate interests in respect of the disputed domain name, and the Complainant has satisfied paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
The Complainant’s argumentation is based on the four circumstances mentioned in paragraph 4(b) of the Policy in order to demonstrate the Respondent’s bad faith registration and use of the disputed domain name.
In reviewing the present case, it appears that the Respondent has registered the disputed domain name in order to attract, for commercial gain, Internet users to the website and from there to other websites, by creating a likelihood of confusion with the Complainant’s trademarks, according also to the uncontested allegations of the Complainant.
The Panel also notes the default of the Respondent, which in the present circumstances “reinforces the inference of bad faith registration and bad faith use”. The Hongkong and Shanghai Banking Corporation Limited v. Bill Lynn,WIPO Case No. D2001-0915.
The bad faith of the Respondent is also reinforced through a simple, logical process as well, in the sense that it would indeed be highly unlikely that the Respondent would register randomly and unintentionally a domain name that is identical or confusingly similar to the Complainant’s NESTLÉ trademark. Rather, it seems to this Panel more likely that such registration and use would be motivated by a hoped-for capitalization, i.e., commercial gain from the Complainant’s reputation, as mentioned above.
As a consequence of the above, the Panel finds that the Respondent registered and is using the disputed domain name in bad faith.
Accordingly, the Panel finds that the Complainant has successfully proven that the disputed domain name is identical or confusingly similar to trademarks and service marks in which the Complainant has rights, that the Respondent has no rights or legitimate interests in the disputed domain name, and that the Respondent registered and is using the disputed domain name in bad faith. 7. Decision
For 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.
Christos A. Theodoulou
Sole Panelist
Date: December 9, 2012
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