Complainant is Société des Produits Nestlé S.A. of Vevey, Switzerland, represented by Studio Barbero, Italy.
Respondents are Alex Veneros, Mina San Cristobal of Santa Cruz de la Sierra, Plurinational State of Bolivia and Fernando Carranza Vega, nestle of Toluca, Mexico. 2. The Domain Names and Registrars
The disputed domain names and are registered with PDR Ltd. d/b/a PublicDomainR. The disputed domain name is registered with Network Solutions, LLC (collectively referred to as “the Registrars”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 7, 2018. On August 8, 2018, the Center transmitted by email to the Registrars a request for registrar verification in connection with the disputed domain names. On August 8, 2018, Network Solutions, LLC transmitted by email to the Center its verification response confirming that Respondent Fernando Carranza Vega is listed as the registrant for the disputed domain name and providing the contact details. On August 9, 2018, PDR Ltd. d/b/a PublicDomainR transmitted by email to the Center its verification response confirming that Respondent Alex Veneros is listed as the registrant for the and disputed domain names 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 Respondent of the Complaint, and the proceedings commenced on August 10, 2018. In accordance with the Rules, paragraph 5, the due date for Response was August 30, 2018. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on August 31, 2018.
The Center appointed Robert A. Badgley as the sole panelist in this matter on September 11, 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
Complainant is a wholly-owned subsidiary of Nestlé, S.A., a company founded in 1866. Complainant is the holder of most of the 2,250 international and national trademark registrations for the mark NESTLÉ (or variations thereof). This mark is registered in numerous countries, including the United States (as early as 1924), Mexico (as early as 1964), and Bolivia (as early as 1984). Complainant and its Nestlé Group affiliates sell food-related products, such as chocolates, baby food, breakfast cereals, beverages, bottled water, and prepared foods, all over the world, including in the United States, Mexico, and Bolivia. According to the Complaint, Complainant is the “world’s largest food consumer products company,” and the Nestlé Group’s global sales in 2017 were CHF 89.8 billion.
Complainant owns the domain name and uses it to host its commercial website. Complainant also operates commercial websites at domain names using country code Top-Level Domains (“ccTLDs”), such as (Mexico) and (Bolivia).
The disputed domain names and were registered on May 18, 2018 and May 10, 2018, respectively, in the name of Respondent Alex Veneros (“Veneros”). The disputed domain name was registered on July 27, 2018 in the name of Respondent Fernando Carranza Vega (“Vega”).
According to Complainant, Veneros and Vega are one and the same person. Complainant notes that it sent a cease-and-desist letter to Veneros on July 13, 2018, and the disputed domain name was registered two weeks later under a different name (“Vega”). The contact information provided by Vega is false, since the street address corresponds to one of Complainant’s own business units in Mexico. Complainant also asserts that, for a time, the websites to which all three of the disputed domain names resolved made similar use of Complainant’s trademarks and graphic elements (at the site “www.”), and all three of Respondent’s sites sold used automobiles.
Complainant sent a number of cease-and-desist letters to Respondent, but never received a reply. 5. Parties’ Contentions A. Complainant
Complainant asserts that it has established the three elements required under the Policy for a transfer of the three disputed domain names. In addition, Complainant asserts that the three disputed domain names should be transferred in a single consolidated proceeding because Respondent Veneros and Respondent Vega are the same person or, at a minimum, all three disputed domain names are under common control. B. Respondent
Respondent did not reply to Complainant’s contentions, either on the merits of the Policy or with respect to Complainant’s assertion that Respondent Veneros and Respondent Vega are one and the same person. 6. Discussion and Findings
Paragraph 4(a) of the Policy lists the three elements which Complainant must satisfy with respect to each of the disputed domain names:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(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.
With respect to consolidation, the Panel grants Complainant’s request to decide the outcome of all three disputed domain names in a single proceeding. The similarity of the three websites to which the disputed domain names resolved (for a time), and the fact that used cars were offered for sale at each site, suggests common control. Moreover, Respondent(s) did not dispute the allegation that Veneros and Vega are the same person. When someone alleges that you are someone else, especially when that someone else is accused of wrongdoing, the natural response would be to deny that you are that someone else. The negative inference to be drawn from the failure of Respondent(s) to rebut this allegation is powerful enough, especially when coupled with the circumstantial evidence presented by Complainant, to conclude without difficulty that this case should encompass all three of the disputed domain names. A. Identical or Confusingly Similar
The Panel concludes that Complainant has rights in the NESTLÉ mark through longstanding and widespread registration and use. The Panel finds that each of the disputed domain names is confusingly similar to the NESTLÉ mark. Each of the disputed domain names incorporates in its entirety (except for the accent aigu on the second “e”) Complainant’s distinctive NESTLÉ mark, and merely adds a descriptive term (“Texas,” or “corporativo” [“corporate” in Spanish], or “unidades” [“units” in Spanish]). These additional words do not negate a finding of confusing similarity between the disputed domain names and the NESTLÉ mark.
Complainant has established Policy, paragraph 4(a)(i). B. Rights or Legitimate Interests
For each of the disputed domain names, pursuant to paragraph 4(c) of the Policy, Respondent may establish its rights or legitimate interests in the disputed domain names, among other circumstances, by showing any of the following elements:
(i) before any notice to you [Respondent] of the dispute, your use of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services; or
(ii) you [Respondent] (as an individual, business, or other organization) have been commonly known by the disputed domain name, even if you have acquired no trademark or service mark rights; or
(iii) you [Respondent] are making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
The Panel concludes that Respondent has no rights or legitimate interests in respect of the disputed domain names. Respondent has not come forward to articulate or defend his motives in registering the disputed domain names. It is undisputed that Respondent is unaffiliated with Complainant and has not been authorized by Complainant to use the NESTLÉ mark. Respondent’s unauthorized use of Complainant’s mark on websites offering to sell used cars clearly is not a bona fide offering of goods and services.
Complainant has established Policy paragraph 4(a)(ii). C. Registered and Used in Bad Faith
For each of the disputed domain names, paragraph 4(b) of the Policy provides that the following circumstances, “in particular but without limitation,” are evidence of the registration and use of the domain name in “bad faith”:
(i) circumstances indicating that Respondent has registered or has acquired the disputed domain name primarily for the purpose of selling, renting, or otherwise transferring the disputed domain name registration to Complainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of its documented out of pocket costs directly related to the disputed domain name; or
(ii) that Respondent has registered the disputed domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct; or
(iii) that Respondent has registered the disputed domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) that by using the disputed domain name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website or other online location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on Respondent’s website or location.
The Panel concludes that Respondent has registered and used the disputed domain names in bad faith. Respondent clearly had Complainant’s NESTLÉ mark in mind when registering the disputed domain names. The mark is famous, and Respondent makes reference to the mark and in other respects copies the visual attributes of Complainant’s own websites at Respondent’s sites.
The Panel also finds that Respondent has used the disputed domain names in bad faith within the meaning of Policy paragraph 4(b)(iv), quoted above. The undisputed record in this case shows that Respondent has attempted, for commercial gain (offering pre-owned vehicles for sale), to confuse consumers into believing that Respondent is somehow affiliated with or endorsed by Complainant.
Complainant has established Policy paragraph 4(a)(iii). 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 Complainant.
Robert A. Badgley
Sole Panelist
Date: September 13, 2018
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