The Complainants are The Procter & Gamble Company, United States of America (“USA”) / Braun GmbH, Germany, represented by Studio Barbero, Italy.
The Respondent is Domain Admin / WhoIs Privacy Corp., Bahamas. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 5, 2019. On December 6, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 9, 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 Complainants on December 13, 2019, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainants to submit an amendment to the Complaint. The Complainants filed an amendment to the Complaint on December 13, 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 proceeding commenced on December 18, 2019. In accordance with the Rules, paragraph 5, the due date for Response was January 7, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 8, 2020. The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on January 17, 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 A. Complainants The 1st Complainant is a company incorporated in the USA and the mother company of the 2nd Complainant, a company incorporated in Germany. The 1st Complainant was founded in 1837 and is one of the largest companies in the world, manufacturing and selling a wide range of consumer goods. The 2nd Complainant was founded in Germany in 1921 and has, since the 1950s, been manufacturing and selling worldwide a wide range of electronic razors and other small electrical appliances under the trade mark BRAUN (the “Trade Mark”). The 2nd Complainant is the owner of numerous registrations in jurisdictions worldwide for the Trade Mark, including International registration No. 652027 (designating Russian Federation ), with a registration date of November 14, 1995. The 1st Complainant is the owner of a number of domain name registrations comprising the Trade Mark. B. Respondent The identity and location of the Respondent is unknown. C. The Disputed Domain Name The disputed domain name was registered on November 16, 2018. D. Use of the Disputed Domain Name The disputed domain name has previously been used in respect of a Russian language website offering for sale the Complainants’ products under the Trade Mark as well as the Complainants’ unrelated dental care products under the trade mark ORAL-B (the “Website”). At the date of this Decision, it is resolved to an inactive website. 5. Parties’ Contentions A. Complainants The Complainants contend that the disputed domain name is identical or confusingly similar to the Trade Marks, the Respondent has no rights or legitimate interests in respect of the disputed domain name, and the disputed domain name was registered and is being used in bad faith. B. Respondent The Respondent did not reply to the Complainants’ contentions. 6. Discussion and Findings 6.1 Consolidation of Complainants Paragraph 10(e) of the Rules provides as follows: “A Panel shall decide a request by a Party to consolidate multiple domain name disputes in accordance with the Policy and these Rules”. Past UDRP decisions suggest that a complaint may be brought by multiple complainants where (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 (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 4.11.1). In the present proceeding, the Complainants have requested consolidation, due to their common legal and business interest in the Trade Mark; and their specific common grievance against the Respondent. The Respondent has not made any submissions on this issue. The Panel finds that the Complainant has common grievances against the Respondent, and the Respondent has engaged in common conduct that has affected the Complainants’ rights in a similar fashion. The Panel also finds that it would be procedurally efficient and equitable to all the Parties for the Complainants to be consolidated. In all the circumstances, the Panel therefore determines, under paragraph 10(e) of the Rules, that there be consolidation of the Complainants in this proceeding. 6.2 Substantive Elements of the Policy The Complainants must prove each of the three elements in paragraph 4(a) of the Policy in order to prevail. A. Identical or Confusingly Similar The Panel finds that the Complainants have rights in the Trade Mark acquired through use and registration. The disputed domain name incorporates the entirety of the Trade Mark (see WIPO Overview 3.0, section 1.7). Disregarding the generic Top-Level Domain (“gTLD”) “.cool”, it is identical to the Trade Mark. The Panel therefore finds that the disputed domain name is identical to the Trade Mark. B. Rights or Legitimate Interests Paragraph 4(c) of the Policy provides a list of non-exhaustive circumstances any of which is sufficient to demonstrate that a respondent has rights or legitimate interests in a disputed domain name: (i) before any notice to the respondent 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 (as an individual, business, or other organization) has been commonly known by the disputed domain name even if the respondent 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. The Complainants have not authorised, licensed, or permitted the Respondent to register or use the disputed domain name or to use the Trade Mark. The Panel finds on the record that there is therefore a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name, and the burden is thus on the Respondent to produce evidence to rebut this presumption. The Respondent has failed to show that it has acquired any trade mark rights in respect of the disputed domain name or that the disputed domain name has been used in connection with a bona fide offering of goods or services. To the contrary, the disputed domain name has been used in connection with the Website, in order to offer for sale the Complainants’ products under the Trade Mark, as well as the Complainants’ unrelated dental care products under the Complainants’ ORAL-B trade mark. The Panel finds that the Respondent is unable to establish rights or legitimate interests in the disputed domain under the Policy as: (i) the Respondent is not using the Website to sell only the Complainants’ trade marked goods – it is also selling ORAL-B dental care products unrelated to the Trade Mark; and (iii) the Website does not accurately and prominently disclose the Respondent’s relationship with the Complainant trade mark holders, (see WIPO Overview 3.0, section 2.8.1). Furthermore, the layout, images and text published on the Website are designed to reinforce the impression that the Website is operated or authorised by Complainant; and it is falsely claimed at the bottom of the home page and in the “Contact us” section that the Website is the “Braun Official site online store of equipment in Russia” (English translation). There has been no evidence adduced to show that the Respondent has been commonly known by the disputed domain name. There has been no evidence adduced to show that the Respondent is making a legitimate noncommercial or fair use of the disputed domain name. In addition, the Panel notes the nature of the disputed domain name, which carries a risk of implied association (see WIPO Overview 3.0, section 2.5.1). In all the circumstances, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith Noting the composition of the disputed domain name and in light of the manner of the use of the disputed domain name highlighted in Section B. Above, the Panel finds that the requisite element of bad faith has been made out. The Panel notes also that, following receipt of a letter of demand from the Complainants’ representatives, the Website was taken down (yet the Respondent did not respond to the letter of demand). The Panel therefore finds that the disputed domain name has been registered and is being used in bad faith. 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 Sebastian M.W. Hughes
Sole Panelist
Dated: January 31, 2020
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