The Complainant is Unilever N.V. of Rotterdam, Netherlands, represented by SILKA Law AB, Sweden.
The Respondent is Compsys Domain, Compsys Domain Solutions Private Limited of Mumbai, India. 2. The Domain Name and Registrar
The disputed domain name is registered with PDR Ltd. d/b/a PublicDomainR (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 9, 2018. On October 10, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 11, 2018, 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 October 17, 2018. In accordance with the Rules, paragraph 5, the due date for Response was November 6, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 7, 2018.
The Center appointed Manuel Moreno-Torres as the sole panelist in this matter on November 12, 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 part of the Unilever Group founded in 1930 and one of the largest consumer product corporations in the world.
The Complainant owns the following trademark registrations:
TRADEMARK
INTERNATIONAL /
NATIONAL
DATE OF REGISTRAITION
TRADEMARK NO.
UNILEVER
European Union Trademark (word mark)
June 18, 2010
008646481
European Union Trademark (figurative)
August 23, 2005
003646916
The disputed domain name was registered on October 27, 2017.
The disputed domain name has been used for pay-per-click (“PPC”) website. 5. Parties’ Contentions A. Complainant
The Complainant contends as follows:
The Complainant alleges to be the owner of the registered trademark UNILEVER as a word mark in numerous countries all over the world, on its own or, by any of its subsidiaries. The disputed domain name incorporates the UNILEVER trademark in its entirety. The addition as a prefix of the verb “compra” is insufficient to add distinctiveness nor the generic Top-Level Domain (“gTLD”) “.com”.
The Respondent has no legitimate interests in the disputed domain name since the Respondent is not known by the disputed domain name, nor the Respondent has rights, and did not claim to have them in the term.
Further, the disputed domain name is pointing to a Pay-Per-Click site which redirects to links related to the Complainant’s products. Such PPC links affords revenues to the Respondent and this use leads to the conclusion that the Respondent has intentionally attempted to attract internet users to its websites with the only intent for commercial gain. Therefore, to mislead consumers and to tarnish the trademark of the Complainant.
The Respondent has had ample time to activate a website since the registration of the disputed domain name but still the website to which the disputed domain name resolves is inactive.
The Complainant also contends that given the apparently widespread reputation of the UNILEVER Trademark and the Respondent’s failure to submit a response or to provide any evidence of actual or contemplated good-faith use, application of the passive holding doctrine is appropriate.
The domain name is confusingly similar to the Complainant’s extensively and well-known trademark. Therefore, the Respondent must have been aware of the Complainant.
Further, the Respondent has demonstrated a pattern of bad faith registration as it has a history of adverse UDRP decisions. See for instance the following UDRP decisions where the Respondent was involved: Kansas City Steak Company, LLC v. Compsys Domain, Compsys Domain Solutions Private Limited,WIPO Case No. D2018-0538; ZB, N.A., a national banking association, dba Zions First National Bank v. Compsys Domain Solutions Private Limited,WIPO Case No. D2017-2494; Philip Morris USA Inc. v. Compsys Domain / Compsys Domain Solutions Private Limited,WIPO Case No. D2017-2395; Hertz System, Inc. v. D/Compsys Domain Solutions Private Limited,WIPO Case No. D2009-0615; LEGO Juris A/S v. D and Compsys Domain Solutions Private Limited,WIPO Case No. D2009-0381; BolognaFiere S.p.A v. D/Compsys Domain Solutions Private Limited,WIPO Case No. D2009-0391; Deutsche Telekom AG v. Compsys Domain Solutions Private Limited,WIPO Case No. D2009-0058.
The Complainant argues that UNILEVER is a well-known trademark, so it is unlikely that the Respondent was not aware of the Complainant’s rights. Besides, the Respondent bears no relationship to the trademark and the term “unilever” which refers alone to the Complainant. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
In order for the Panel to decide to grant the remedy of transfer of the disputed domain name to the Complainant, it is necessary that the Complainant proves, as required by paragraph 4(a) of the Policy, that:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(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.
There are no exceptional circumstances within paragraph 5(e) of the Rules so as to prevent this Panel from determining the dispute based upon the Complaint, notwithstanding the failure of the Respondent to lodge a Response. Under paragraph 14(a) of the Rules in the event of such a “default” the Panel is still required “to proceed with a decision on the complaint”, whilst under paragraph 14(b) it “shall draw such inferences there from as it considers appropriate”. This dispute resolution procedure is accepted by the domain name registrant as a condition of registration. Therefore, a registrant should not gain any evidentiary benefit from its failure to participate. A. Identical or Confusingly Similar
It is well accepted that the test for the first requirement involves a comparison between the trademark and the disputed domain name. Therefore, it is apparent that the trademark UNILEVER is reproduced in its entirety in the disputed domain name . As stated in section 1.8 of the WIPO Overview of the WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), “where the relevant trademark is recognizable within the disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) would not prevent a finding of confusing similarity under the first element”.
Besides, it is well established that gTLDs, in this case “.com”, are typically irrelevant to the consideration of identity or confusing similarity between a trademark and a domain name.
Accordingly, the Panel finds that the Complainant has met the first requirement under paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
To asses the second requirement, WIPO Panelists have consistently accepted that where a complaint makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name (see section 2.1, “WIPO Overview 3.0”).
In the present case the Complainant’s allegations are as follows: there is no relationship between the parties, the Respondent has no registered rights in the term “Unilever” and nor has the Respondent been known by such a term. Further, the Complainant asserts that the Respondent uses the domain name for commercial purposes by operating a website which redirects to a PPC site. Such use is not legitimate for the purposes of the Policy since the Respondent has attempted to attract internet users to its website with the only intent of commercial gain.
The prima facie case has not been rebutted by the Respondent, and therefore the Panel finds that the Complainant has therefore demonstrated that the Respondent lacks rights or legitimate interests in the disputed domain name to the satisfaction of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
While the Respondent has no authorization to use and register the disputed domain name, the registration of the disputed domain name was probably based on a previous knowledge of the Complainant’s marks and activities. See L’Oréal v. Noorinet,WIPO Case No. D2015-0755. For the purposes of the Policy, UNILEVER is to be considered a well-known trademark. Accordingly, such a previous knowledge is deemed to have caused registration of the disputed domain name.
The Respondent has been found by previous panels under the Policy to have being engaged in a pattern of registering domain names to prevent the owners of marks from registering them. See for example Deutsche Telekom AG v. Compsys Domain Solutions Private Limited, supra; ZB, N.A., a national banking association, dba Zions First National Bank v. Compsys Domain Solutions Private Limited, supra; or Kansas City Steak Company, LLC v. Compsys Domain, Compsys Domain Solutions Private Limited, supra.
Such a Respondent’s involvement in similar course of conduct with regard to the Complainant’s UNILEVER trademark justifies an adverse finding under the terms of paragraph 4(b)(ii).
Besides, the disputed domain name is active and points towards a PPC website containing various sponsored links. As the Panel has checked, these links redirects to a number of market places where the Complainant’s products and others from third competitive parties are offered. Since the disputed domain name is not descriptive of the services advertised via the PPC links, the Panel considers that the most likely source of traffic are the click-through-revenues gained when an internet user clicks the PPC. Under these circumstances the Panel also infers that the Respondent has attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion as to the source, affiliation or endorsement of the website. This amounts to evidence of bad faith use under paragraph 4(b)(iv) of the Policy.
Therefore, the Panel concludes that the registration and use of the disputed domain name are in bad faith as set out in the Policy as 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 name be transferred to the Complainant.
Manuel Moreno-Torres
Sole Panelist
Date: November 20, 2018
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