The Complainant is Tetra Laval Holdings & Finance S.A. of Pully, Switzerland, represented by Valea AB, Sweden.
The Respondent is ICS Inc. of Grand Cayman, Cayman Islands, Overseas Territory of the United Kingdom of Great Britain and Northern Ireland. 2. The Domain Name and Registrar
The disputed domain name is registered with eNom (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 14, 2014. On February 14, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 18, 2014, the Registrar transmitted by email to the Center its verification response providing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on February 21, 2014 providing the registrant and contact information disclosed by the Registrar, and requesting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on March 3, 2014.
The Center verified that the Complaint together with 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”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint and the amended Complaint, and the proceedings commenced on March 4, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was March 24, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 25, 2014.
The Center appointed Christos A. Theodoulou as the sole panelist in this matter on March 28, 2014. 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 Tetra Laval Holdings & Finance S.A., a company organized under the laws of Switzerland. The Complainant has a world-wide reputation in, among others, food processing and packaging.
The Tetra Laval Group consists of three independent industry groups; Tetra Pak, DeLaval and Sidel Group. The Tetra Pak Group is a multinational food processing and packaging company. The Tetra Pak Group is now a part of the Tetra Laval Group. The Tetra Pak Group, according to the uncontested allegations of the Complainant, employs more than 32,000 people and is operative in more than 170 countries worldwide.
The Complainant owns all the Tetra Pak Group’s trademarks throughout the world and licenses these trademarks to the independent market companies within the Tetra Pak Group for use in connection with their respective businesses, according to the uncontested allegations of the Complainant.
The Complainant owns the TETRA PAK trademark, which is registered, both as word marks as well as part of devices marks, in more than 160 countries throughout the world with more than 2,000 registrations, according to the uncontested allegations of the Complainant, hereunder, but not limited to; Swedish Trademark Registration No. 71196 TETRA PAK, registered in 1951, Community Trademark (CTM) Registration No. 1202522 TETRA PAK registered in 2000, CTM Registration No. 3276565 TETRA PAK PROTECTS WHAT’S GOOD (device mark), CTM Registration No. 3188323 TETRA PAK PROTECTS WHAT’S GOOD (device mark), CTM Registration No. 7242969 PROTECTS WHAT’S GOOD TETRA PAK (device mark), United States Patent and Trademark Office (USPTO) Registration No. 586480 TETRA PAK, registered in 1954, USPTO Registration No. 580219 TETRA PAK, registered in 1953.
Furthermore, according to the uncontested allegations of the Complainant, the Complainant is the owner of more than 300 domain name registrations throughout the world containing the TETRA PAK mark distributed among generic Top-Level Domains (gTLDs) and country-code Top-Level Domains (ccTLDs).
The disputed domain name was created on November 12, 2012. The disputed domain name is used for a sponsored pay-per-click (PPC) website and is offered for sale. 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 registered trademark rights TETRA PAK throughout the world.
The mere fact that the Respondent has added to the TETRA PAK mark the gTLD suffix “.com” and omitted the letter “a”, does not to this Panel affect the essence of the matter: the disputed domain name is 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 previous UDRP panels have found. 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.
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 TETRA PAK. B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides a non-exhaustive list of 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 or 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 use of the disputed domain name in connection with a PPC website.
(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 “Tetra Pak” or “tetrapk”. 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 on this point is mainly based on the circumstances mentioned in paragraph 4(b)(iv) 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, which is still pointing to a sponsored PPC website, to create a likelihood of confusion with the Complainant’s trademarks, according also to the uncontested allegations of the Complainant.
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 distinctive TETRA PAK 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.
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.
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: April 2, 2014
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