The Complainant is CSC Brands LP of Camden, New Jersey, United States of America (“United States”), represented by SILKA Law AB, Sweden.
The Respondent is Shen Zhong Chao of Beijing, China, self-represented. 2. The Domain Name and Registrar
The disputed domain name is registered with Alibaba Cloud Computing (Beijing) Co., Ltd. (the “Registrar”). 3. Procedural History
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on October 31, 2018. On November 1, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 5, 2018, 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 November 5, 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 amendment to the Complaint on the same day.
On November 5, 2018, the Center sent an email in English and Chinese to the Parties regarding the language of the proceeding. The Complainant requested that English be the language of the proceeding on the same day. The Respondent submitted an informal email in English on the same day, but did not comment on the language of the proceeding by the specified due date.
On November 13, 2018, the Center requested the Complainant to submit an amendment regarding the Registrar’s identity. The Complainant submitted an amended Complaint on November 14, 2018.
On November 15, 2018, the Respondent sent an email querying how to settle. The Center informed the Parties that if they wish to explore settlement options, the Complainant should submit a request for suspension by November 22, 2018. The Complainant submitted an email on November 20, 2018 refusing to settle with the Respondent.
The Center verified that the Complaint together with the amendment to the Complaint and 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 in English and Chinese of the Complaint, and the proceedings commenced on November 21, 2018. In accordance with the Rules, paragraph 5, the due date for Response was December 11, 2018. The Respondent did not submit any substantive Response. Accordingly, the Center notified the Parties that it would proceed with panel appointment.
The Center appointed Sok Ling MOI as the sole panelist in this matter on December 17, 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 leading manufacturer of easy-to-prepare foods, such as soups and snacks. It provides more than 3,000 product varieties in more than 120 countries throughout the world. In 2007, it started selling its soup in China.
The Complainant owns numerous trade mark registrations for CAMPBELL’S in several jurisdictions around the world, including the following trade mark registrations:
Jurisdiction
Mark
Registration Number
Registration Date
China
CAMPBELL’S
328365
October 30, 1988
China
CAMPBELL’S
1559442
April 21, 2001
United States
CAMPBELL’S
0299495
December 6, 1932
United States
CAMPBELL’S
1839540
June 14, 1994
United States
CAMPBELL’S
2052959
April 15, 1997
The Complainant also owns, and operates websites through, the following domain name registrations reflecting its registered trade marks to promote its goods and services:
- registered in 2004;
- registered in 1995;
- registered in 2002;
- registered in 2018;
- registered in 2018;
- registered in 2014;
- registered in 2018;
- registered in 2014.
The disputed domain name was registered on March 26, 2018, the same day the Complainant announced the completion of its acquisition of a snacks company and the formation of a new snacks division in the United States called “Campbells Snacks”. According to the evidence submitted by the Complainant, the disputed domain name redirects to a holding page offering the disputed domain name for sale. 5. Parties’ Contentions A. Complainant
The Complainant contends that the disputed domain name reproduces its well-known trade mark CAMPBELL’S and the generic English word “snacks” (referring to the nature of the Complainant's business) and is therefore confusingly similar to its trade mark.
The Complainant contends that as the Respondent has not created an active website in more than 6 months but has merely offered the disputed domain name for sale on the landing page, it has no rights or legitimate interests in respect of the disputed domain name.
The Complainant contends that the Respondent has registered the disputed domain name primarily for the purpose of selling or otherwise transferring the same to the Complainant for valuable consideration, and also for the purpose of preventing the Complainant from reflecting its trade mark in a corresponding domain name.
The Complainant also contends that the Respondent has a history of targeting companies which are in an expansion phase by securing relevant domain names upon media announcement of events such as a merger, a new product launch or the setting up of a new business unit. The Complainant further contends that the Respondent is using the disputed domain name to confuse Internet users into believing that the Respondent’s website is in some way connected with or endorsed by the Complainant, so as to attract Internet users to its website for commercial gain. The Complainant therefore contends that the Respondent has registered and is using the disputed domain name in bad faith.
For all of the above reasons, the Complainant requests for the transfer of the disputed domain name to the Complainant. B. Respondent
The Respondent did not respond to the Complainant’s contentions. 6. Discussion and Findings 6.1. Procedural Issue: Language of the Proceeding
Pursuant to paragraph 11(a) of the Rules, unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding.
Paragraphs 10(b) and (c) of the Rules require the Panel to ensure that the proceeding takes place with due expedition and that the Parties are treated equitably and given a fair opportunity to present their respective cases.
The language of the Registration Agreements for the disputed domain name is Chinese. From the evidence on record, no agreement appears to have been entered into between the Complainant and the Respondent regarding the language issue. The Complainant filed its Complaint in English and has requested that English be the language of the proceeding. The Respondent did not comment on the language of the proceeding.
Although the Respondent appears to be a Chinese individual, the Panel finds persuasive evidence in the present proceeding to suggest that the Respondent has sufficient knowledge of English. In particular, the Panel notes that:
(a) the disputed domain name comprises Latin characters;
(b) the Respondent corresponded with the Center in fluent English (via email of November 5, 2018 and November 15, 2018);
(c) according to the evidence submitted by the Complainant, it appears the Respondent has been involved in other WIPO UDRP domain name disputes wherein the panelists have unanimously found the Respondent to have knowledge of the English language; and
(d) the holding page to which the disputed domain name redirects has contents in English (such as “the domain is for sale”).
Additionally, the Panel notes that:
(a) the Center has notified the Respondent of the proceeding in both Chinese and English;
(b) the Center has informed the Respondent that it would accept a Response in either English or Chinese.
Considering the above circumstances, the Panel finds that the choice of English as the language of the present proceeding is fair to both Parties and is not prejudicial to either one of the Parties in its ability to articulate the arguments for this case.
The Panel has taken into consideration the fact that to require the Complaint and all supporting documents to be re-filed in Chinese would, in the circumstances of this case, cause an unnecessary cost burden to the Complainant and would unnecessarily delay the proceeding.
Having considered all the matters above, the Panel determines under paragraph 11(a) of the Rules that it shall accept the Complaint and all supporting materials as filed in English, that English shall be the language of the proceeding, and that the decision will be rendered in English. 6.2. Substantive Issues
Paragraph 4(a) of the Policy directs that a complainant must prove each of the following three elements to obtain an order for the disputed domain name to be transferred:
(i) the disputed domain name registered by the respondent is identical or confusingly similar to a trade mark 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.
On the basis of the evidence introduced by the Complainant, the Panel concludes as follows: A. Identical or Confusingly Similar
The Panel accepts that the Complainant has rights in CAMPBELL’S by virtue of its use and registration of the same as a trade mark.
The disputed domain name effectively incorporates the Complainant’s trade mark CAMPBELL’S in its entirety. The addition of the English word “snacks” (sharing the “s” with “campbell”) does not avoid the finding of confusing similarity. The addition of the generic Top-Level Domain (“gTLD”) “.com” does not impact on the analysis of whether the disputed domain name is identical or confusingly similar to the Complainant’s trade mark in this case.
Consequently, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s trade mark.
Accordingly, the Complainant has satisfied the requirements of the first element under paragraph 4(a) of the Policy. B. Rights or Legitimate Interests
Under paragraph 4(a)(ii) of the Policy, a complainant bears the burden of establishing that the respondent lacks rights or legitimate interests in the disputed domain name. However, once the complainant makes a prima facie showing under paragraph 4(a)(ii) of the Policy, the burden of production shifts to the respondent to establish its rights or legitimate interests in the disputed domain name by demonstrating any of the following, without limitation, under paragraph 4(c) of the Policy:
(i) before any notice to it of the dispute, the respondent’s 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) the respondent has been commonly known by the disputed domain name, even if it has acquired no trade mark or service mark rights; or
(iii) the respondent is 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 trade mark or service mark at issue.
See Taylor Wimpey PLC, Taylor Wimpey Holdings Limited v. honghao Internet foshan co, ltd,WIPO Case No. D2013-0974.
There is no evidence suggesting that the Respondent is commonly known by the disputed domain name or that the Respondent has any rights in the term “campbell” or “campbellsnacks”.
As the disputed domain name redirects to a holding page, there is no evidence to suggest that the Respondent is using or has made any preparations to use the disputed domain name in connection with a bona fide offering of goods or services or for a legitimate noncommercial purpose. In fact, the disputed domain name is being offered for sale on the holding page, and such use of the disputed domain name can neither be considered fair nor legitimate.
The Panel is satisfied that the Complainant has made out a prima facie case showing that the Respondent lacks rights or legitimate interests in the disputed domain name. The burden of production thus shifts to the Respondent to establish its rights or legitimate interests in the disputed domain name. Since the Respondent has failed to offer any explanation for its registration of the disputed domain name, the prima facie case has not been rebutted. Moreover, the Respondent sent an email querying how to settle.
Consequently, the Panel finds that the Respondent lacks rights or legitimate interests in the disputed domain name.
Accordingly, the Complainant has satisfied the requirements of the second element under paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy sets out four circumstances which, without limitation, shall be evidence of the registration and use of the disputed domain name in bad faith, namely:
(i) circumstances indicating that the respondent has registered or acquired the disputed domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trade mark or service mark or to a competitor of the complainant, for valuable consideration in excess of the respondent’s documented out-of-pocket costs directly related to the disputed domain name; or
(ii) the respondent has registered the disputed domain name in order to prevent the owner of the trade mark or service mark from reflecting the mark in a corresponding domain name, provided that the respondent has engaged in a pattern of such conduct; or
(iii) the respondent has registered the disputed domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the disputed domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to the respondent’s website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the respondent’s website or location or of a product or service on the respondent’s website or location.
The Panel notes that the disputed domain name redirects to a holding page and is being passively held. Nevertheless, the consensus view of previous UDRP panels is that passive holding in itself does not preclude a finding of bad faith. The panel must examine all the circumstances of the case to determine whether a respondent is acting in bad faith. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 3.3.
The CAMPBELL’S trade mark has been used and registered by the Complainant for more than 80 years while its domain name has been registered since 1995. The Panel accepts that the Complainant and its trade mark CAMPBELL’S enjoy a strong reputation worldwide and a significant Internet presence. A cursory Internet search would have disclosed the CAMPBELL’S trade mark and its extensive use by the Complainant. Furthermore, according to the evidence submitted by the Complainant, the Respondent registration of the disputed domain name coincided with the media announcement of the Complainant’s formation of a new snacks division in the United States called “Campbell Snacks”. A strong presumption therefore arises that the Respondent was aware of the Complainant and its trade mark when it registered the disputed domain name.
Registration of a domain name that incorporates a complainant’s well-known trade mark by someone with no connection with the trade mark suggests opportunistic bad faith.
Given that the disputed domain name does not resolve to an active website in connection with a bona fide offering of goods or services, but is instead offered for sale, the Panel accepts that the Respondent likely registered the disputed domain name for the purpose of selling or otherwise transferring the same to the Complainant or one of its competitors for valuable consideration. The Panel notes, according to the evidence submitted by the Complainant, that the Respondent was previously involved in at least three domain name disputes involving domain names that incorporate well- known trade marks (see Klarna Bank AB v. Shen Zhong Chao,WIPO Case No. D2017-2491; thyssenkrupp AG v. Shen Zhong Chao,WIPO Case No. D2018-1410; Standard Life Employee Services Limited v. Shen Zhong Chao,WIPO Case No. D2017-1114) which suggests that the Respondent is engaged in a pattern of cybersquatting. The Panel therefore accepts that the Respondent likely have registered the disputed domain name for the purpose of preventing the Complainant from reflecting its trade mark in a corresponding domain name. The circumstances referred to in paragraph 4(b)(i) and (ii) of the Policy are applicable.
The Respondent has not categorically denied the Complainant’s allegations of bad faith. In view of the above finding that the Respondent does not have rights or legitimate interests in the disputed domain name, and taking into account all the circumstances of this case, the Panel concludes that the Respondent has registered and is using the disputed domain name in bad faith.
Accordingly, the Complainant has satisfied the requirements of the third element under paragraph 4(a) of 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 transferred to the Complainant.
Sok Ling MOI
Sole Panelist
Date: December 31, 2018
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