The Complainant is Tetra Laval Holdings & Finance S.A. of Pully, Switzerland, represented by Valea AB, Sweden.
The Respondent is Whoisguard Protected, Whoisguard Inc. of Panama, Panama / Ronald Giggs of Pennsylvania, Pakistan1. 2. The Domain Name and Registrar
The disputed domain name (the "Disputed Domain Name") is registered with NameCheap, Inc. (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on June 12, 2018. On June 12, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On the same date, the Registrar transmitted by email to the Center its verification response disclosing 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 June 19, 2018, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on June 21, 2018.
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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on June 25, 2018. In accordance with the Rules, paragraph 5, the due date for Response was July 15, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on July 16, 2018.
The Center appointed Pablo A. Palazzi as the sole panelist in this matter on August 2, 2018. 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, part of the Tetra Laval Group, which is a multinational food processing and packaging company founded in 1947 in Sweden.
Tetra Pak Group employs more than 32,000 people and is operative in more than 170 countries worldwide.
The Complainant is the owner of numerous registrations throughout the world for the trademark TETRA PAK including, among others:
- Swedish Trademark Registration No. 71,196 for TETRA PAK (word mark), registered on December 14, 1951;
- European Union Trademark Registration (EUTM) No. 1,202,522 TETRA PAK (word mark), registered on October 2, 2000;
- United States of America ("United States") Registration No. 580,219 TETRA PAK registered on September 22, 1953;
- United Kingdom of Great Britain and Northern Ireland ("United Kingdom") Registration No. 705710 registered on March 14, 1956.
The Complainant is also the owner of more than 300 domain names, registered in generic Top-Level Domains ("gTLDs") and country code Top-Level Domains ("ccTLDs"), including , registered on March 31, 1999 and , registered on April 7, 2006, among others.
The Disputed Domain Name was registered on April 21, 2018.
The Disputed Domain Name does not appear to have resolved to any active website. 5. Parties' Contentions A. Complainant
The Complainant's contentions can be summarized as follows: 1) Identical or confusingly similar
The Complainant alleges that the Disputed Domain Name is confusingly similar to the Complainant's trademark TETRA PAK since consumers will mistake the Disputed Domain Name with the said trademark. Moreover, the addition of the new gTLD ".review" does not have any bearing not sufficient to prevent the confusing similarity.
"Tetrapack" is simply a misspelling creating confusing similarity with the Complainant's mark. This misspelling is a minor modification of the Complainant's well-known trademark (See Tetra Laval Holdings & Finance S.A. v. Jason Wolfe, Geagr,WIPO Case No. D2017-0831).
In view of the foregoing, the Disputed Domain Name is visually, phonetically and conceptually confusingly similar to the Complainant's trademark. 2) Rights or legitimate interests
The Complainant submits that the Respondent is not affiliated or related to the company in any way, nor has the Complainant granted any licenses or other rights to the Respondent to use the trademark TETRA PAK in the Disputed Domain Name or to register any domain name which incorporates the Complainant's trademark.
The Respondent has no rights or legitimate interests with respect to the Disputed Domain Name.
Furthermore, the Respondent is not using the Disputed Domain Name with a bona fide offering of goods or services and is not known by the Disputed Domain Name. 3) Registration and use in bad faith
The Complainant alleges that the Respondent has intentionally registered and is using the Disputed Domain Name in bad faith.
The Complainant states that the Respondent chose to register a name that is almost identical to the Complainant's well-known trademark with knowledge of the Complainant's TETRA PAK trademark, in order to take unfair advantage of the reputation of the trademark.
The Complainant and its trademark TETRA PAK enjoy a worldwide reputation since 1952. Thus, the Respondent cannot have been unaware of the Complainant's prior rights. Even a simple search on Google would have clearly indicated the rights of the Complainant.
Finally, the Complainant argues that since MX-records are set up for the Disputed Domain Name there is a high risk that the Disputed Domain Name is or will be used in email correspondence. According to the Complainant, this clearly demonstrates the Respondent's bad faith. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
Paragraph 4(a) of the Policy lists the three elements which the Complainant must satisfy with respect to the Disputed Domain Name in this case:
(i) The Disputed Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) The 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
Based on the evidence submitted, the Panel finds that the Disputed Domain Name is confusingly similar to the Complainant's trademark TETRA PAK. The addition of the letter "c" in the middle of the word "pack" represents a misspelling that does not provide sufficient distinction from the Complainant's trademark.
Moreover, the misspelling is also hardly noticeable and results in a very minor modification of the Complainant's trademark.
This is an example of typo-squatting. As section 1.9 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0") states:
"A domain name which consists of a common, obvious, or intentional misspelling of a trademark is considered by panels to be confusingly similar to the relevant mark for purposes of the first element.
(…) Examples of such typos include (i) adjacent keyboard letters, (ii) substitution of similar-appearing characters (e.g., upper vs lower-case letters or numbers used to look like letters), (iii) the use of different letters that appear similar in different fonts, (iv) the use of non-Latin internationalized or accented characters, (v) the inversion of letters and numbers, or (vi) the addition or interspersion of other terms or numbers."
Therefore, the Panel concludes that the Complainant has satisfied the first requirement of paragraph 4(a) of the Policy. B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides a list of circumstances any of which is sufficient to demonstrate that the Respondent has rights or legitimate interests in the Disputed Domain Name:
"i) Before any notice to you of the dispute, your use of, 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 at issue."
There is no evidence of the existence of any of those rights or legitimate interests. The Complainant has not authorized, licensed, or permitted the Respondent to register or use the Disputed Domain Name or to use the trademark in the Disputed Domain Name. The Complainant has prior rights in the trademark, which precede the Respondent's registration of the Disputed Domain Name.
The Respondent, because of its default, has failed to show that it has acquired any rights with respect to the Disputed Domain Name. Moreover, he had the opportunity to demonstrate his rights or legitimate interests, but he did not reply to the Complainant's contentions.
As such, the Panel finds that the Complainant has satisfied the second requirement of paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith
Paragraph 4(a)(iii) of the Policy provides that the Complainant must establish that the Respondent registered and subsequently used the Disputed Domain Name in bad faith.
The Disputed Domain Name was registered on April 21, 2018, while the Complainant TETRA PAK Swedish Trademark Registration No. 71,196 was granted on December 14, 1951.
The Panel is of the view that the Respondent registered the Disputed Domain Name in bad faith since it is a common typographical misspelling of and is confusingly similar to the Complainant's well-known TETRA PAK trademark (see Tetra Laval Holdings & Finance S.A. v. TetraPak Global PH-AU, Gerald Smith,WIPO Case No. D2012-0847; Tetra Laval Holdings & Finance S.A. v. Vahid Moghaddami, AzarNet.Co,WIPO Case No. D2010-0268). Therefore, the Panel concludes that the Respondent registered the Disputed Domain Name in bad faith.
The Disputed Domain Name is currently inactive. As it has been the case in several previous UDRP cases, the fact that the disputed domain name is currently inactive does not prevent a finding of bad faith and does not change the Panel's views in this respect. In addition the Complainant has suggested that the Disputed Domain Name may be fraudulently used in email correspondence.
In the case at hand, in view of the Respondent's registration of the Disputed Domain Name confusingly similar to the Complainant's well-known trademark, the absence of any documented rights or legitimate interests of the Respondent in the Disputed Domain Name and its failure to respond to the Complaint, the Panel finds that the Respondent's lack of use of the Disputed Domain Name also amounts to bad faith.
Therefore, taking all the circumstances into account and for all the above reasons, the Panel concludes that the Respondent has 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.
Pablo A. Palazzi
Sole Panelist
Date: August 8, 2018
1 The Panel notes that this is a fake address.
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