The Complainant is Tetra Laval Holdings & Finance S.A. of Pully, Switzerland, represented by Valea AB, Sweden.
The Respondent is Jason Wolfe, Geagr of Rock, Kansas, United States of America. 2. The Domain Names and Registrar
The disputed domain names , and are registered with 1&1 Internet AG (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 25, 2017. On April 25, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On May 4, 2017, 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on May 5, 2017. In accordance with the Rules, paragraph 5, the due date for Response was May 25, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 26, 2017.
The Center appointed William A. Van Caenegem as the sole panelist in this matter on June 9, 2017. 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 a Swiss corporation, dedicated to the production and sale of equipment and processing plants for making, packaging and distribution of foods and accessories.
The Complainant holds various registrations for the trade marks TETRA PAK and SIDEL, including Swedish trade mark registration No. 71196 for TETRA PAK, registered in 1951; European Union Trade Mark (EUTM) registration No. 1202522 for TETRA PAK; EUTM registration No. 004332086 SIDEL, registered in 2005; and International trade mark registration No. 858530 SIDEL registered in 2005.
The Complainant Tetra Laval Holdings & Finance S.A. either holds or manages all the Tetra Pak and Sidel Group trade marks. Tetra Laval consists of three otherwise independent groups Tetra Pak, DeLaval and Sidel Group.
The disputed domain names were registered on the following dates: on April 5, 2017; on April 21, 2017; and also on April 21, 2017. According to the Complainant there is no active website associated with any of the disputed domain names (the Panel notes that according to the evidence the disputed domain names resolved to pay-per-click (“PPC”) websites). The Complainant also contends that the Respondent has used the relevant domain names and the contact details of an employee of the Complainant to send fraudulent email communications. 5. Parties’ Contentions A. Complainant
According to the Complainant, the disputed domain names are confusingly similar to its TETRA PAK and SIDEL registered trade marks. They incorporate those marks in their entirety, but including obvious misspellings. This conduct is known as “typosquatting”, the Complainant says, and results in the creation of a domain name virtually identical to the Complainant’s trade marks. Adding a misspelled generic word does not deprive the registered owner of rights in the mark, nor does it avoid confusing similarity. The Complainant contends that given the widespread reputation attaching to its marks, and the lack of factors distinguishing the disputed domain names from those marks, they should be considered confusingly similar to the Complainant’s respective trade marks. The Complainant asserts that an Internet user would probably assume a connection between websites associated with the disputed domain names and the Complainant. The Complainant also asserts that mail exchanger records (MX-records) have been set up and a fraudulent email sent by the Respondent, indicating that his only intention was to use the disputed domain names in prosecuting a fraud by correspondence.
The Complainant asserts that due to its long and continuous use of the TETRA PAK and SIDEL trade marks, the Respondent cannot have any rights or legitimate interests in the disputed domain names. None of the situations alluded to in paragraph 4(c) of the Policy are established in this case. Nor has the Complainant licensed or authorised the use of its trade marks, is there any legitimate relationship between the parties, or are there any facts that suggest that the Respondent is commonly known by the disputed domain names. The Respondent has no trade marks or trade name corresponding to the disputed domain names, and these were registered well after the vast majority of the Complainant’s marks, which have in any case achieved the status of well-known marks in the legal sense.
According to the Complainant, it is not possible that the Respondent was ignorant of the Complainant’s trade marks at the relevant time. Neither mark is of a kind that an unrelated party could legitimately adopt. Further, there is no active website associated with any of the disputed domain names, but according to the Complainant the Respondent has used the relevant domain names and the contact details of an employee of the Complainant to send fraudulent email communications. The Complainant asserts that none of this gives rise to rights or legitimate interests in respect of the disputed domain names.
As to bad faith, the Complainant contends that the Respondent must have been aware of the Complainant’s TETRA PAK trade mark at the time of registration. Therefore, according to the Complainant, the Respondent could not have chosen or used the words “tetrapak” and “sidel” for any other reason than trading on the Complainant’s goodwill or creating the false impression of an association, endorsement or sponsorship. Further, the Complainant asserts that the Respondent is using the disputed domain names in fraudulent communications in conjunction with the name of an employee of the Complainant, to obtain personal and financial data from Internet users. This clearly evidences bad faith on the part of the Respondent.
According to the Complainant, it is also the case that the Respondent has registered 148 domain names including other well-known marks, clearly indicating his dishonest intentions. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
The disputed domain names , and are not identical to the respective registered trade marks of the Complainant. The two first domain names contain the trade marks SIDEL and TETRA PAK respectively in their entirety, with the addition of a generic term consistent with the fact that the Complainant in essence consists of a group of entities. There is a minor misspelling in the word “group” which appears as “grovp” in each case but this misspelling is not in the mark itself, but in the generic addition. The misspelling is hardly noticeable, and clearly deliberate. In terms of the domain name there is a minor misspelling of the trade mark as otherwise incorporated in its entirety and without any addition. The misspelling in this case is also hardly noticeable and results in a very minor modification of the Complainant’s mark. If not quite identical, this domain name is about as close to being so as it is possible to be. The modified spelling in each case does not result in a different or existing word with any different meaning of its own.
Therefore the Panel holds that the disputed domain names are confusingly similar to the respective registered trade marks of the Complainant. B. Rights or Legitimate Interests
The Respondent has not established any websites to which the disputed domain names resolve. In fact the Respondent has made no use of the disputed domain names, other than for PPC websites and to impersonate the Complainant and obtain financial gain by fraudulent correspondence. This activity is not of a kind to vest any rights or legitimate interests in the Respondent, quite the contrary. Further, the Respondent has in no way been licensed or authorized to use or incorporate any of the Complainant’s trade marks at issue here. There is nothing to indicate that he or his business is known by the disputed domain names or that he has any legal rights whatsoever in the marks incorporated in them.
Therefore the Panel holds that the Respondent has no rights or legitimate interests in the disputed domain names. C. Registered and Used in Bad Faith
It is apparent from the composition of the disputed domain names the Respondent chose to register, that he was fully aware of the fact that they incorporated well recognized and distinctive trade marks in which he had absolutely no prior rights. That is also apparent from the pattern of these three registrations by the same Respondent, and in any case the Complainant indicates that the Respondent has acquired numerous other domain names incorporating well-known marks in which he has no discernable rights. It is also clear from the fact that these are typical cases of deliberate typosquatting, that the Respondent intended to derive some financial gain from acquiring domain names that so closely resemble existing trade marks. Both the trade marks SIDEL and TETRA PAK are highly distinctive and have little or no inherent meaning. There is no apparent reason or justification for the Respondent acquiring the disputed domain names, with their deliberate misspellings, for any possible legitimate reason. In any case, the Complainant asserts that the Respondent has used the disputed domain names, relying on them to send ostensibly legitimate correspondence to obtain financial details of correspondents. This is a dishonest practice and more generally all the circumstances are strongly indicative of a total absence of good faith in the registration and use of the disputed domain names.
Therefore the Panel holds that the disputed domain names were registered and used 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 names, , and be transferred to the Complainant.
William A. Van Caenegem
Sole Panelist
Date: June 21, 2017
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