The Complainants are Berry Global, Inc., United States of America (“United States”); PGI Nonwovens B.V., United States; Chicopee, Inc., United States; and PGI Polymer Inc., United States, represented by FB Rice Pty Ltd, Australia.
The Respondent is Roma Siu, Australia. 2. The Domain Name and Registrar
The disputed domain name is registered with GoD, LLC (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 14, 2019. On August 14, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 15, 2019, 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 August 16, 2019. In accordance with the Rules, paragraph 5, the due date for Response was September 5, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 6, 2019.
The Center appointed Steven A. Maier as the sole panelist in this matter on October 14, 2019. 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. Consolidation of Proceeding
The proceeding is brought by four named Complainants. The Complainants state that Berry Global, Inc. is the ultimate parent company of the other three Complainants. They also produce evidence that each of the four Complainants is a holder of separate registered trademark rights in various jurisdictions for the trademark CHICOPEE. In the circumstances, the Panel finds that the criteria for the consolidation of the Complainants as described in section 4.11.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) are met: namely, that (i) the Complainants have a specific common grievance against the Respondent, or the Respondent has engaged in common conduct that has affected the Complainants in a similar fashion; and (ii) it would be equitable and procedurally efficient to permit the consolidation. 5. Factual Background
The Complainant Berry Global, Inc. is a manufacturer of plastic packaging products. Its subsidiary Chicopee, Inc. is a supplier of wipes and cleaning materials for the professional market.
The Complainants are the owners of numerous trademark registrations in various jurisdictions worldwide for marks comprising or including the name CHICOPEE. Examples include:
- European Union Trade Mark number 118828 for the word mark CHICOPEE registered on November 24, 1998, in Class 24
- United States trademark number 3286167 for the word mark CHICOPEE registered on August 28, 2007, in Class 24
Berry Global, Inc. is the registrant of the domain names and and was also the registrant of the disputed domain name until it allowed that registration to lapse in 2018. The Complainants used the disputed domain name for the purpose of a website promoting their own hygiene products between approximately 2000 and August 2018.
The disputed domain name was first registered in 1999. The Complainants submit that the Respondent acquired the disputed domain name on August 10, 2018.
According to evidence submitted by the Complainants, the Respondent has used the disputed domain name for the purpose of a website at “www.”. The website is headed “Chicopee hygiene wipes” and purports to offer information and a blog concerning wipes and hygiene products, including both text and images. 6. Parties’ Contentions A. Complainants
The Complainants submit that the disputed domain name is identical or confusingly similar to their trademark CHICOPEE.
The Complainants submit that the Respondent has no rights or legitimate interests in respect of the disputed domain name. They contend that the Respondent has not been known by that name and that it has no independent trademark rights in the mark CHICOPEE. The Complainants refer to the Respondent’s use of the disputed domain name for the purpose of the website described above and deny that this constitutes any bona fide business operation.
The Complainants submit that the disputed domain name was registered and has been used in bad faith. In particular, they contend that the Respondent must have been aware of the Complainant and its trademark when it registered the disputed domain name.
The Complainant requests the transfer of the disputed domain name. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 7. Discussion and Findings
In order to succeed in the Complaint, the Complainants are required to show that all three of the elements set out under paragraph 4(a) of the Policy are present. Those elements are:
(i) that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainants have rights;
(ii) that the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) that the disputed domain name has been registered and is being used in bad faith.
Even in a case such as this where no Response has been submitted, the Complainants must still establish that each of the three above elements is present. A. Identical or Confusingly Similar
The Complainants have demonstrated that they are the owners of registered trademark rights in the mark CHICOPEE. The disputed domain name incorporates the whole of the Complainants’ trademark together with the geographical term “europe”. In the view of the Panel, the addition of that term does not prevent a finding of confusing similarity between the disputed domain name and the Complainants’ trademark and the Panel therefore finds that the disputed domain name is confusingly similar to a trademark in which the Complainants have rights. B. Rights or Legitimate Interests
In the view of the Panel, the Complainants’ submissions set out above give rise to a prima facie case that the Respondent has no rights or legitimate interests in respect of the disputed domain name. However, the Respondent has not participated in this proceeding and has not, therefore, submitted any explanation for its registration and use of the disputed domain name, or evidence of rights or legitimate interests on its part in the disputed domain name, whether in the circumstances contemplated by paragraph 4(c) of the Policy or otherwise.
While noting the Respondent’s use of the disputed domain name for a website purporting to provide information about hygiene products, the Panel does not consider this to amount to legitimate noncommercial or fair use of the disputed domain name. In this regard, the Panel finds that the disputed domain name is inherently misleading in implying a commercial connection with the Complainants and that the Respondent’s use of the term “Chicopee hygiene wipes” on its website is also plainly misleading.
The Panel concludes therefore that the Respondent has no rights or legitimate interests in respect of the disputed domain name. C. Registered and Used in Bad Faith
Having conducted a Google search against the term “chicopee”, the Panel finds no evidence that the term is a dictionary word in common usage or that it has any meaning in commerce other than to refer to the Complainants’ trademark and products. The Panel also notes that the Complainants themselves used the disputed domain name to promote their products until shortly before the Respondent acquired the disputed domain name and that the Respondent has used the disputed domain name for the purpose of a website which refers to “Chicopee hygiene wipes”.
The Panel readily infers in the circumstances that the Respondent was aware of the Complainants’ trademark at the time it registered the disputed domain name and that it did so with a view to taking unfair commercial advantage of that trademark: there is no explanation for the Respondent’s adoption of the term “chicopee” either in the disputed domain name or on its website if its intention was merely to provide a generic informational website.
The Panel therefore concludes on balance that the Respondent registered and has used the disputed domain name either with the intention of selling the disputed domain name to the Complainants for an excessive sum (paragraph 4(b)(i) of the Policy) or of diverting Internet users to its website for commercial gain (paragraph 4(b)(iv) of the Policy). The Panel therefore finds that the disputed domain name has been registered and is being used in bad faith. 8. 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.
Steven A. Maier
Sole Panelist
Date: October 22, 2019
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