The Complainant is Lauren Singer, United States of America (“USA”), represented by All Bridges Legal, P.C, USA.
The Respondent is Belsheba Nyabwa, Kenya, represented pro se. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 31, 2020. On January 31, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 3, 2020, 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 February 3, 2020, 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 amended Complaint on February 4, 2020. The Center verified that the Complaint, together with 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 of the Complaint, and the proceedings commenced on February 4, 2020. In accordance with the Rules, paragraph 5, the due date for Response was February 24, 2020. On February 21 and 24, 2020, the Center received the Respondent’s request for extension of the response due date. On February 24, 2020, the Center granted the Respondent an extension of four calendar days to submit a response. The Response was filed with the Center on February 27, 2020. The Center appointed Andrew D. S. Lothian as the sole panelist in this matter on March 2, 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 an individual residing in the USA. The Complainant was originally the CEO of a company named Mindmilk Organics, LLC (“Mindmilk”) and purchased its assets on or around July 17, 2019. Between about 2013 and about 2019, Mindmilk operated under the brand “The Simply Co” and created, marketed and sold non-toxic laundry detergents and household products. The disputed domain name was used in connection with this business and was created on December 29, 2013, by the Complainant. By virtue of an assignment from Mindmilk, the Complainant is the owner of USA registered trademark no. 5569675 for the word mark THE SIMPLY CO., registered on September 25, 2018, in use classes 3 (organic, toxin-free laundry detergent and household cleaning preparations) and 35 (online and offline retail store services featuring said products). Prior to the transition of assets between Mindmilk and the Complainant, the renewal of the disputed domain name was neglected, and the Registrar auctioned it in accordance with its terms of business. The Respondent, an individual residing in Kenya, won said auction on about February 4, 2019, ultimately paying USD 2,900 for an “expired domain name purchase” of the disputed domain name. The disputed domain name currently points to a website named “Bedding ‘N’ Beyond” at the URL “www.beddingnbeyond.com”, the corresponding domain name for which was created on February 2, 2017. Said website is in a “blog” format and features an initial article entitled “Why Pick Organic Non Toxic Products From The Shop Shelf” which is followed by a series of affiliate links directing the visitor to the USA-based online retailer “www.amazon.com” in respect of natural dish soaps, dishwasher soap packs, and natural laundry detergent. Said “blog” goes on to provide a mattress buying guide, followed by similar affiliate links for multiple different mattress products. An Internet search for “Bedding ‘N’ Beyond” prepared by the Complainant discloses a business listing for the Respondent’s website at “www.beddingnbeyond.com” alongside a postal address in the USA, a corresponding telephone number, and an email address, which the Complainant asserts and the Respondent does not deny are either false/non-existent or inactive. 5. Parties’ Contentions A. Complainant The Complainant contends that the disputed domain name is identical or confusingly similar to a trademark in which it has rights; that the Respondent has no rights or legitimate interests in the disputed domain name; and, that the disputed domain name has been registered and is being used in bad faith. The Complainant notes that it is the owner of a registered trademark which is identical to the second level of the disputed domain name and asserts that the Respondent is using the disputed domain name to forward to “www.beddingnbeyond.com” for confusingly similar and/or identical purposes to those protected by said trademark. The Complainant asserts that there is no evidence that the Respondent has been commonly known by “The Simply Co.” and submits that the Respondent has no publicly available corporate registration or anything reflecting legitimate usage of said name. The Complainant contends that there is no evidence of 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, and furthermore that the Respondent offers services virtually identical to those covered by the Complainant’s trademark and previously delivered by Mindmilk, intending to make commercial gains by misleading customers into thinking that this is a continuation of the previous operation of the disputed domain name. The Complainant asserts that the website to which the disputed domain name is pointed is designed to profit by advertising and facilitating the sale of such consumer goods as non-toxic laundry detergents and household cleaning items. The Complainant contends that the administrative phone number and Registrar connected to the domain name The Complainant submits that the disputed domain name is intentionally designed to attract commercial gain by leveraging the Complainant’s mark to confuse consumers and mislead them into thinking that they are interacting with a Mindmilk/Complainant website, rather than a confusingly similar one which also features non-toxic laundry detergents and household cleaners, adding that the Respondent’s use of the disputed domain name creates a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, endorsement, and affiliation of a competing website. The Complainant notes that the Respondent does not even transact business under the name “The Simply Co.”, asserting that the Respondent’s misappropriation of the Complainant’s mark exists solely to confuse consumers by pointing them to a competing site. The Complainant adds that there is no readily actionable way to reach the Respondent and no publicly identifiable person or entity associated therewith, asserting that the only publicly-available contact information connected to The Respondent requests that the Complaint be denied. The Respondent denies that the disputed domain name is used by the Respondent for purposes that are confusingly similar to the previous purposes of the Complainant/Mindmilk and submits that the Complainant’s trademark registration is limited to organic detergent and cleaning preparations, with a territorial application within the USA. The Respondent explains that the disputed domain name is used to promote the “blog” to which it points, which reviews and discusses in detail a wide array of types of bedroom fixtures and fittings, accessories, linen, and cleaning aids (including washing machines and detergents), submitting that the Complainant’s characterization of this as advertising directly in competition with the Complainant is not accurate. The Respondent states that it is not a retailer and that it is not unexpected that the Respondent has no corporate registration as it is not unusual for “blogs” to be operated under one’s own name rather than by a corporate entity, which does not constitute any illegal or fraudulent activity, adding that its site does not include details for purchasers of products as it is neither the owner nor seller of such products. The Respondent states that it was unaware of the existence of the Complainant, Mindmilk, or their products when it acquired the disputed domain name from auction, adding that its interest in the disputed domain name arises from the fact that it incorporates the generic English word “simply” that connotes “basic”, “rudimentary”, or “straightforward” and is not a distinctive or famous word to which the Complainant has exclusive rights. The Respondent says that it viewed a website incorporating “simply” to be advantageous to promote “Bedding ‘N’ Beyond” in accordance with its desire to provide information in a simple, straightforward manner. The Respondent explains that it opted for a “Privacy Protection” service when it acquired the disputed domain name, noting that this replaces its details with those of a domain proxy to protect the former from hackers, hijackers, and data miners, adding that this is not an indication of any wrongdoing on the Respondent’s part and noting that the Respondent provided the details to its Registrar in accordance with the registration requirements. The Respondent notes that it is in all probability one of many registrants opting to use this service, and that some others may well have been involved in scams but asserting that the Respondent has not and that any association with scams is spurious. The Respondent contends that its “blog” does not purport to be associated with the Complainant or Mindmilk and references neither of them, adding that its primary purpose is bedroom-related furniture and accessories, which it is unlikely that a visitor would associate with the Complainant or Mindmilk. The Respondent reiterates that it acquired the disputed domain name in an auction, adding that the terms of the Complainant’s or Mindmilk’s previous registration caused them to explicitly release the disputed domain name to a third party on expiration of such registration. The Respondent notes that the Complainant alleges that it purchased various assets and the Complainant’s registered trademark from Mindmilk in July 2019, suggesting that if the Complainant had also intended to acquire the disputed domain name it would have attempted to recover this immediately before or after such purchase, adding that it allowed the lapse of a considerable period of time before filing the present Complaint. The Respondent submits that this suggests that the Complainant did not have a use for the disputed domain name for at least one year after the Respondent acquired it. The Respondent asserts that its use of the disputed domain name is not in bad faith, that its operation as an individual rather than a corporate entity is no indication of wrongdoing, that the Respondent is not involved in or associated with any person engaged in phishing scams or Internet fraud, and that the Complainant has failed to prove that this is the case. The Respondent reiterates that there is no prospect of confusing the Respondent’s site with the Complainant. 6. Discussion and Findings To succeed, the Complainant must demonstrate that all of the elements enumerated 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 first element test under the Policy is typically made by ascertaining initially whether the Complainant has rights in a trademark and, secondly, performing a relatively straightforward side-by-side comparison between such trademark and the disputed domain name. In the present case, both of the Parties reference the use to which the disputed domain name has been put in support of their respective positions on confusing similarity. This is not typically relevant to the first element test and the Panel will reserve consideration of the applicable submissions for its assessment of the second and third elements discussed below. The Panel finds that the Complainant has rights in its USA registered trademark THE SIMPLY CO. as described in the factual background section above. Comparing this mark to the second level of the disputed domain name, it may be seen that this is alphanumerically identical. The period in the trademark, being an indication that the “co.” element of the mark is intended to be an abbreviation, is of no particular significance or distinguishing effect. A period can only be reproduced in a domain name in order to serve as a technical separator such as, for example, to separate the second and top levels in the disputed domain name. The generic Top-Level Domain (“gTLD”), in the case of the disputed domain name, “.com”, is typically disregarded for the purposes of comparison as being required for technical reasons only. Accordingly, on the above basis, the Panel finds that the disputed domain name is identical to the Complainant’s trademark and therefore that the first element under the Policy has been established. B. Rights or Legitimate Interests Paragraph 4(c) of the Policy lists several ways in which the Respondent may demonstrate rights or legitimate interests in the disputed domain name: “Any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate your rights or legitimate interests to the domain name for purposes of paragraph 4(a)(ii): (i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or (ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or (iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.” The consensus of previous decisions under the Policy is that a complainant may establish this element by making out a prima facie case, not rebutted by the respondent, that the respondent has no rights or legitimate interests in a domain name. In the present case, the Complainant submits that there is no evidence that the Respondent has been commonly known as “The Simply Co.”, that the Respondent has no publicly available corporate registration or anything reflecting legitimate usage of said name, that there is no evidence of the Respondent’s use of the disputed domain name in connection with a bona fide offering of goods or services, and that the Respondent offers services virtually identical to those covered by the Complainant’s trademark in order to mislead customers into thinking that this is a continuation of the previous operation of the disputed domain name. The Panel is of the opinion that such submissions establish the requisite prima facie case. The Panel therefore turns to the Response in order to assess whether this contains a sufficient rebuttal of such prima facie case. The Respondent asserts it acquired the disputed domain name at auction in order to use it to promote its “Bedding ‘N’ Beyond” site focused on bedroom-related furniture and accessories and that such use confers rights and legitimate interests upon it. The Respondent explains that it selected the disputed domain name to promote its site because it contains the dictionary word “simply”. In the first instance, therefore, the Panel asks itself whether the Respondent is genuinely using the disputed domain name in connection with a bona fide offering of goods and services relating to the dictionary meaning of the word “simply” or whether the Respondent’s explanation of its use or intended use of the disputed domain name is merely pretextual. The Panel agrees that the disputed domain name does contain the word “simply”. However, the fact is that the disputed domain name as a whole does not employ “simply” as an adverb or as part of any descriptive phrase but rather uses this word in the context of a business or entity named “The Simply Co.”. It is notable that the Respondent is not attempting to suggest that it had decided to form a business by that name, independently of the Complainant, and/or to rebrand its website accordingly, nor does the evidence suggest that it has done anything of that sort with the disputed domain name. On the contrary, the Respondent has merely pointed the disputed domain name to its existing website at “www.beddingnbeyond.com”, suggesting that it is seeking to benefit from the Internet traffic previously developed by the Complainant’s use rather than from the fact that a word such as “simply” can connote “basic”, “rudimentary”, or “straightforward” as it asserts. In these circumstances, the Panel rejects the Respondent’s argument that it is making use of a dictionary word, in the context of that word’s usual meaning, and unconnected with the Complainant’s rights. Although the Respondent notes that it is based in Kenya, while the Complainant is based in the USA, the Respondent’s website has been configured to contain affiliate links to a major USA-based retailer, and the products placed on the landing page, which are the subject of those links, clearly compete with those in respect of which the Complainant’s USA trademark is registered. The Respondent’s suggestion that it is logical to link natural dish soaps with bedroom furniture and accessories is tenuous at best and is wholly unconvincing to the Panel, while, on the other hand, the connection with the Complainant’s trademark is both plain and obvious. In these circumstances, this use of the disputed domain name could not be described as a bona fide offering of goods and services, since it is evidently keyed to the Complainant and its line of business. The Panel finds that the Respondent has failed to rebut the Complainant’s prima facie case and accordingly that the Respondent has no rights or legitimate interests in the disputed domain name. The second element under the Policy has therefore been established. C. Registered and Used in Bad Faith Paragraph 4(b) of the Policy provides four, non-exclusive, circumstances that, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith: “(i) circumstances indicating that you have registered or you have acquired the 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 trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or (ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or (iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or (iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your website or other on line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your website or location.” In the present case, the Complainant contends that the Respondent has targeted it and its mark through the registration of the disputed domain name after it was inadvertently allowed by the Complainant and/or its predecessor in title to lapse. The main thrust of the Complainant’s case under this element falls under paragraph 4(b)(iv) of the Policy, namely that the Respondent has attempted to attract Internet users by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of the products on the website to which the disputed domain name currently points. The Respondent, for its part, denies any prior knowledge of the Complainant and/or its mark, submitting that it acquired the disputed domain name due to the attractiveness of the word “simply”, for use with its “blog” site “Bedding ‘N’ Beyond”, focused on bedroom-related furniture and accessories. As noted in the preceding section, the Panel has found on the balance of probabilities that the Respondent’s explanation for its acquisition of the disputed domain name is pretextual. To the Panel’s mind, the principal purpose of the Respondent’s website is to promote affiliate links for products offered by a major USA-based retailer which are loosely held together by some additional content. The initial links displayed are for the type of products in respect of which the Complainant’s mark is registered. While the Respondent says that the primary purpose of its site is bedroom-related furniture and accessories, a focus on natural detergents, initially dish soaps with associated purchasing links, is featured at the very top of the site. Information relating to bedding and mattresses, again with affiliate links, does appear but only much further down the homepage. This presents an obvious incongruity to the Panel’s eyes. The only apparent connection between natural detergents and the Respondent’s selection and use of “The Simply Co.”, in the Panel’s opinion, is that this happens to be the brand name of the Complainant and of its former business, which made and sold similar products. Even if the Panel were to take the Respondent’s case at its highest, its acquisition and use of the disputed domain name to promote exactly the same type of products as those of the Complainant and its former business, entirely independently of the Complainant, its rights, and its past use of the disputed domain name, is a somewhat unlikely and unfortunate coincidence. Of all the bedroom-related furniture and accessories-focused affiliate links which the Respondent might have chosen to promote under the phrase “The Simply Co.”, as found in the disputed domain name, it has selected links for products equivalent to those manufactured and sold by the former registrant of the disputed domain name and covered by its trademark. The Panel considers that the Respondent’s case that this activity is wholly unconnected to the Complainant’s or Mindmilk’s former use of the disputed domain name stretches credulity beyond breaking point. Furthermore, the Complainant has shown that when the Respondent’s business name and the “www.beddingnbeyond.com” website are searched for in Internet searches, this gives rise to business listings featuring said URL together with a USA based postal address, telephone number, and email address which are said to be either false or do not work. In the absence of any evidence to the contrary, this suggests to the Panel that the Respondent is seeking to promote its site in the USA in order to maximize Internet traffic and responses from consumers who may confuse this with the Complainant’s former website at the disputed domain name. It is notable that, in an otherwise detailed Response, the Respondent fails to address this point or to explain these business listings, especially when the Respondent claims to be an individual “blogger” rather than a business operation. The Complainant’s uncontested evidence on this point therefore suggests to the Panel that the Respondent has, or wishes to promote, an affinity with the USA, where the Complainant is based, despite the terms of the Response. In light of the above, the Panel makes the reasonable inference that the Respondent is more likely than not to have had knowledge of the Complainant/Mindmilk and intent to target the Complainant’s mark at the point of acquisition of the disputed domain name. The Respondent goes on to argue that in terms of the Complainant’s original agreement with the Registrar, the Complainant explicitly released the disputed domain name for the purposes of the auction, by virtue of which the Respondent acquired it. In the Panel’s opinion, this argument does not contain any merit in the present administrative proceeding. A domain name such as the disputed domain name, acquired in such a manner, is subject to the provisions of the Policy, whatever the contractual arrangements between the previous registrant and its registrar might have been on its original expiration. In no way would this serve to negate the thrust of the Policy if the subsequent acquisition and use of the disputed domain name are found to be in bad faith within the meaning of the Policy. The Respondent also focuses upon an apparent time lapse between the expiration of the disputed domain name and the filing of the present Complaint. The Panel is not entirely sure what point the Respondent is making in this context. The Panel accepts that the Respondent acquired the disputed domain name in February 2019 following its expiration and auction by the Registrar. While, by contrast, the Complainant states that the Respondent acquired the disputed domain name in November 2019, it appears to have relied upon the “last updated” entry on the WhoIs data. The record does not show the date when the Respondent activated the disputed domain name in its present use, something that is uniquely within the Respondent’s own knowledge, and whether it did this in November 2019 or not is not of significance in this case. There is ample evidence to show that the Complainant acquired the assets of Mindmilk in July 2019 and that, based on the acquisition documents produced, the disputed domain name was not explicitly referenced in the transaction, in contrast to the Complainant’s trademark. At some point after the transition of assets was complete, the Complainant appears to have noticed that the disputed domain name had been allowed to lapse and was now registered to the Respondent. The present Complaint was then filed at the beginning of February 2020. The Panel does not see any particular significance in this time lapse which would undermine the Complainant’s case to any meaningful extent. Finally, the Panel accepts the Respondent’s contention that the fact that it uses a WhoIs privacy service to mask its contact details, which service appears to have been used by other entities with the intention of masking their contact information in order to facilitate scams, as evidenced by the Complainant, does not necessarily demonstrate that the Respondent is engaged in similar activity, in and of itself. On the facts of this case, the Panel finds the USA business listing associated with the Respondent’s URL, as discussed above, to be of greater significance to the question of registration and use in bad faith than the Respondent’s decision to deploy a privacy service in order to redact such personal data from the WhoIs as was revealed by the Registrar in the verification process. In all of the above circumstances, the Panel finds that the disputed domain name has been registered and is being used in bad faith and accordingly that the third element under the Policy has been established. 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 Andrew D. S. Lothian
Sole Panelist
Date: March 16, 2020
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