The Complainant is Société des Produits Nestlé S.A., Switzerland, represented by Studio Barbero S.p.A., Italy.
The Respondent is James Onuoha Doe, Gambia (the). 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 28, 2019. On November 28, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 2, 2019, 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 December 3, 2019 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 December 3, 2019. The Center verified that the Complaint together with the amendment to 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 December 4, 2019. In accordance with the Rules, paragraph 5, the due date for Response was December 24, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 30, 2019. The Center appointed Adam Samuel as the sole panelist in this matter on January 8, 2020. 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 Nestlé group of companies and is wholly owned by Nestlé S.A. The Nestlé group sells products primarily in the food industry. The Complainant owns a number of trademarks for the name NESTLÉ in a variety of countries including a United States of America trademark, registration number 188089 registered on August 19, 1924. The Respondent registered the disputed domain name on July 29, 2019. The disputed domain name currently resolves to a parking page with no relevant content. The Complainant promotes its businesses through the domain name The disputed domain name incorporates the Complainant’s NESTLÉ trademark with the addition of the non-distinctive element “group”. The addition of a descriptive or generic term does not prevent a domain name wholly incorporating a trademark from being confusingly similar to that trademark. The addition of the word “group” is insufficient to distinguish the disputed domain name from the Complainant’s mark and is apt to increase confusion amongst Internet users since the Complainant is part of the Nestlé group. The addition or deletion of grammatical marks such as accents do not reduce the confusing similarity between the disputed domain name and the Complainant’s trademark. The generic Top-Level Domain (“gTLD”) “.net” is irrelevant here because it is merely instrumental to the use of the Internet. The Respondent is not a licensee, agent of the Complainant or in any other way authorized to the use the Complainant’s trademark, NESTLÉ. The Respondent’s use of the privacy shield to conceal his identity precludes the possibility that the Respondent was previously commonly known by the disputed domain name before receiving notice of this dispute. The disputed domain name is being used for fraudulent purposes. The Respondent has created email addresses based on the disputed domain name to impersonate the Complainant’s employees and send emails to third parties to make fake job offers on behalf of the Complainant’s group in order to obtain unauthorized confidential data and for other possible deceitful purposes. The Respondent’s failure to counter the allegations contained in the Complainant’s cease and desist letter amounts to an admission by the Respondent of these allegations. The misappropriation of a well-known trademark as a domain name itself constitutes bad faith registration. This is reinforced by the short period between the registration of the disputed domain name and the sending of the first fraudulent or phishing email. This shows that the Respondent was familiar with the Complainant’s group when it registered the disputed domain name. The Respondent has done the same thing using another domain name, The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings To succeed, the Complainant must demonstrate that all of the elements listed in paragraph 4(a) of the Policy have been satisfied: (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. A. Identical or Confusingly Similar The disputed domain name consists of the Complainant’s well-known trademark, followed by a hyphen and the word “group” and finished by the gTLD “.net”. The gTLD is irrelevant here because it is a standard registration requirement. See section 1.11 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”). The addition of ordinary meaning words to a trademark does not prevent the disputed domain name from being confusingly similar to that trademark. As section 1.8 of the WIPO Overview 3.0 explains: “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.” Here the ordinary meaning word, “group”, also corresponds to a feature of the Complainant’s business. For these reasons, the Panel concludes that the disputed domain name is confusingly similar to the Complainant’s trademark. B. Rights or Legitimate Interests The Respondent is not called “Nestlé” or anything similar. There is no evidence that the Complainant has ever authorized the Respondent to use its trademarks. Based on the available record, and in the absence of any response on this point, the Panel concludes that the Respondent has no rights or legitimate interests in respect of the disputed domain name. C. Registered and Used in Bad Faith On July 29, 2019, an email was sent in the name of a Nestlé Corporate HR Recruitment Manager from an email account linked to the disputed domain name in relation to a Nestlé job application. This was reported by its recipient to the Complainant, including comments that the sender had obtained from her passport photos and other private material. In another email dated August 30, 2019, another email was sent to an individual again in the name of a Nestlé Corporate HR Recruitment Manager from an email account linked to the disputed domain name in relation to a Nestlé job application. These emails were clearly sent with an intent to deceive their recipients as part of a process designed to obtain personal information from potential employees of the Complainant’s group. The close proximity between the date of these emails and the registration of the disputed domain name makes it clear that the Respondent registered the disputed domain name in order to impersonate and subsequently impersonated the Complainant’s group. This demonstrates that the Respondent registered and has used the disputed domain name in bad faith. See section 3.1.4 of the WIPO Overview 3.0. For all these reasons, the Panel concludes that the disputed domain name was registered and is being used in bad faith. This makes it unnecessary for the Panel to deal with the other points made in support of the Complaint. 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 Adam Samuel
Sole Panelist
Date: January 10, 2020
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