Complainant is Nutricia International BV of Zoetermeer, Netherlands, represented by Dreyfus & associés, France.
Respondent is Eric Starling of Blacktown, New South Wales, Australia. 2. The Domain Name and Registrar
The disputed domain name is registered with Crazy Domains FZ-LLC (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 29, 2015. On April 29, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On May 4, 2015, the Registrar transmitted by email to the Center its verification response confirming that 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 Respondent of the Complaint, and the proceeding commenced on May 11, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was May 31, 2015. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on June 1, 2015.
The Center appointed Evan D. Brown as the sole panelist in this matter on June 10, 2015. 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
Complainant specializes in baby food and medical nutrition, and owns several registrations around the world for the mark APTAMIL (the “Mark”) including Australian trademark no. 1374664, dated July 28, 2010. The Mark is used in connection with Complainant’s well-known brand of baby nutrition products. Respondent registered the disputed domain name on February 7, 2014, and established a website at the disputed domain name which displays Complainant’s products as well as the products of Complainant’s competitors. 5. Parties’ Contentions A. Complainant
Complainant contends that the (a) the disputed domain name is identical and/or confusingly similar to the Mark, (b) Respondent has no rights or legitimate interests in respect of disputed domain name; and (c) the disputed domain name was registered and is being used in bad faith. Complainant seeks the cancellation of the disputed domain name from Respondent to Complainant in accordance with paragraph 4(b)(i) of the Policy. B. Respondent
Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings
To succeed, Complainant must demonstrate that all of the elements listed in paragraph 4(a) of the Policy have been satisfied:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights;
(ii) Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
The incorporation of a trademark in its entirety may be sufficient to establish that a domain name is identical or confusingly similar to Complainant’s registered mark. See Britannia Building Society v. Britannia Fraud Prevention,WIPO Case No. D2001-0505. In this case, the disputed domain name contains Complainant’s trademark APTAMIL in its entirety, as a dominant element, with the additional letter “k” that does not serve sufficiently to distinguish or differentiate the disputed domain name from Complainant’s widely known APTAMIL mark. Indeed, the addition of the letter “k” may heighten any likelihood of confusion. The addition of the letter “k” in the domain name causes the words in the disputed domain name to correspond to Complainant’s field of activity, as APTAMIL is a brand for powdered milk for infants. Therefore, the risk of confusion is reinforced and Internet users may wrongly believe that the disputed domain name is related to a website developed by Complainant for its consumers.
A registered trademark provides a clear indication that the rights in the mark shown on the trademark certificate belong to its respective owner. Advance Magazine Publishers Inc., Les Publications Conde Nast S.A. v. Voguechen,WIPO Case No. D2014-0657. Complainant has demonstrated its rights because it has shown that it is the owner of multiple valid and subsisting trademark registrations for the mark APTAMIL.
Accordingly, the Panel finds that Complainant has shown that the disputed domain name is confusingly similar to a trademark in which Complainant has rights. B. Rights or Legitimate Interests
The Panel evaluates this element of the Policy by first looking to see whether Complainant has made a prima facie showing that Respondent lacks rights or legitimate interests in respect of the disputed domain name. If Complainant makes that showing, the burden of production shifts to Respondent. Canon U.S.A., Inc. v. Miniatures Town,WIPO Case No. D2014-0948, citing: WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”), paragraph 2.1 (after complainant makes prima facie case, the burden of showing rights or legitimate interests in the domain name shifts to Respondent).
Complainant has made a prima facie showing that Respondent lacks rights or legitimate interests in respect of the disputed domain name. By failing to respond to the Complaint, Respondent did not pick up its burden to demonstrate rights or legitimate interests. And no other facts in the record tip the balance in Respondent’s favor.
Paragraph 4(c) of the Policy instructs respondents on a number of ways they could demonstrate rights or legitimate interests (“you” and “your” in the following refers to the particular respondent):
(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
In this case, Respondent does not meet any of these criteria.
The disputed domain name resolves to a Chinese website displaying for sale Complainant’s products but also products from competitors such as Nestlé. Also, the website does not apparently disclose the relationship between the registrant and the trademark owner. These facts do not support a showing of a bona fide offering of goods and services. Toyota Motor Sales, U.S.A., Inc. v. Pick Pro Parts Inc., WIPO Case No. 2005-0562. Such use is taking an unfair advantage of Complainant’s goodwill. BC Northern Lights Enterprises Ltd. v. Sunlight Sheds, WIPO Case No. 2007-1098. There is no legitimate use of the Mark here.
Accordingly, the Panel finds that the Complainant has demonstrated that the Respondent has no rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith
There is bad faith pursuant to the Policy when Respondent “knew or should have known” of Complainant’s trademark rights at the time he registered the disputed domain name. Myer Stores Limited v. Mr. David John Singh,WIPO Case No. D2001-0763; L’Oréal v. Li Qian, Fast Hand Limited and Lisa, WIPO Case No. D2011-0868; NBC Universal Inc. v. S,WIPO Case No. D2007-0077; and Alstom v. Domain Investments LLC, WIPO Case No. D2008-0287.
Given how well-known Complainant’s mark is, one cannot reasonably assert that Respondent did not know of Complainant’s rights in the Mark at the time he registered the disputed domain name.
It appears that Respondent registered the disputed domain name to take advantage of typographical errors made by Internet users seeking Complainant’s commercial websites and to gain commercially by the sale of milk products through a website which gives the impression of being associated with Complainant. By its conduct, Respondent is free-riding on Complainant’s goodwill associated with the Mark, and diverting consumers looking for Complainant’s website. Urban Outfitters Inc. v. Ju Yu,WIPO Case No. D2014-1321.
Accordingly, the Panel finds that Complainant has proven the third element under the Policy. 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 cancelled.
Evan D. Brown
Sole Panelist
Date: June 26, 2015
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