The Complainant is Avent Limited, United Kingdom, represented by C.V. React U.A., Netherlands.
The Respondent is Ruslan Kasumov, Russian Federation. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 3, 2020. On February 3, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 13, 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 14, 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 amendment to the Complaint on February 18, 2020. 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 February 26, 2020. In accordance with the Rules, paragraph 5, the due date for Response was March 17, 2020. On March 5, 2020, the Center received an email communication from a third party. On March 23, 2020, the Center received an inquiry from the Complainant concerning the latter issue, the Center responded to this email on April 3, 2020. On the same day, the Center notified to the Parties that it was proceeding to panel appointment. The Center appointed Taras Kyslyy as the sole panelist in this matter on April 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 a British company known for its baby products such as feeding bottles, soothers, breast pumps and sterilizers. The Complainant is a subsidiary of Koninklijke Philips N.V. The Complainant owns a number of AVENT trademark registrations including European Union Trade Mark registration No.000393611, registration date October 16, 1998. The disputed domain name was registered April 6, 2019, and resolved to a website using the Complainant’s trademark in its design, suggesting for sale the Complainant’s baby products, and claiming it is an authorized Complainant’s online shop. At the time of drafting of the Decision, the disputed domain name resolves to inactive webpage. 5. Parties’ Contentions A. Complainant The disputed domain name is identical to the Complainant’s trademark, since the Respondent uses the Complainant’s trademark in the disputed domain name just adding “.pro” generic Top-Level Domain (the “gTLD”). The Respondent has no rights or legitimate interests in the disputed domain name. The Respondent does not use the disputed domain name in connection with a bona fide offering of goods or services. The Respondent is not a licensee or in any other way authorized to use the Complainant’s trademark. Although the Complainant’s products are being offered for sale on the website at the disputed domain name, the Complainant never received the product, after conducting a test purchase. The Respondent is not making a legitimate noncommercial or fair use of the disputed domain name and has the intent for commercial gain misleadingly to divert consumers or to tarnish the Complainant’s trademark. By using the Complainant’s trademark on both website and domain name the Respondent may make visitors think that they are visiting a website which is affiliated with the Complainant. The website uses the Complainant’s trademark and mentions (in Russian) it is an “official Philips Avent website” which is not the case. The disputed domain name was registered and is being used in bad faith. The disputed domain name prevents Complainant from reflecting its trademark in a corresponding domain name. The Respondent intentionally attempted to attract for commercial gain, Internet users to his web site by creating a likelihood of confusion with the Complainant’s trademark 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 at the disputed domain name. The website at the disputed domain name is not an “official Avent website” (although this is mentioned on the website) and no genuine products are being offered. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar The Complainant established rights in its AVENT trademark. The gTLD “.pro” in the disputed domain name is viewed as a standard registration requirement and may be disregarded for the purposes of the confusing similarity test (see, e.g., Rexel Developpements SAS v. Zhan Yequn,WIPO Case No. D2017-0275). The remaining part of the disputed domain name is identical to the Complainant’s trademark. Considering the above the Panel finds the disputed domain name is identical to the Complainant’s trademark, therefore, the Complainant has established its case under paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests The Complainant has established prima facie that the Respondent has no rights or legitimate interests in the disputed domain name. Furthermore, the Respondent provided no evidence that it holds a right or legitimate interest in the disputed domain name. The Respondent is not commonly known by the disputed domain name, which could demonstrate its rights or legitimate interests (see, e.g., World Natural Bodybuilding Federation, Inc. v. Daniel Jones TheDotCafe,WIPO Case No. D2008-0642). The Complainant did not license or otherwise agree for use of its prior registered trademarks by the Respondent, thus no actual or contemplated bona fide or legitimate use of the disputed domain name could be reasonably claimed (see, e.g., Sportswear Company S.P.A. v. Tang Hong,WIPO Case No. D2014-1875). The disputed domain name used to redirect Internet users to a website with a logo similar to the Complainant’s and designed to make the Internet users believe that they actually access the Complainant’s authorized website. Past UDRP panels confirmed that such actions prove registrant has no rights or legitimate interests in a disputed domain name (see Daniel C. Marino, Jr. v. Video Images Productions, et al.,WIPO Case No. D2000-0598, Houghton Mifflin Co. v. Weatherman, Inc.,WIPO Case No. D2001-0211). According to section 2.8.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) resellers, distributors using a domain name containing complainant’s trademark to undertake sales related to the complainant’s goods may be making a bona fide offering of goods and thus have a legitimate interest in such domain name. Outlined in Oki Data Americas, Inc. v. ASD, Inc.,WIPO Case No. D2001-0903 (the “Oki Data Test”), the following cumulative requirements will be applied in the specific conditions of a UDRP case: (i) the respondent must actually be offering the goods at issue; The Panel finds that the Respondent failed to satisfy at least the first and the third above requirements, and thus failed to pass the Oki Data Test. The Respondent’s use of the disputed domain name misleads consumers into thinking that the website is operated by or affiliated with the Complainant. As such, the Respondent’s use of the disputed domain name cannot be considered bona fide. In addition, the nature of the disputed domain name, being identical to the Complainant’s trademark, carries a high risk of implied affiliation. See section 2.5.1 of the WIPO Overview 3.0. Considering the above the Panel finds the Respondent does not have rights or legitimate interests in the disputed domain name. Therefore, the Complainant has established its case under paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith The Respondent’s use of the disputed domain name to purport to sell the Complainant’s products shows that at the time of the registration of the disputed domain name the Respondent clearly knew and targeted Complainant’s prior registered and famous trademark, which confirms the bad faith (see, e.g., The Gap, Inc. v. Deng Youqian,WIPO Case No. D2009-0113). According to section 3.1 of the WIPO Overview 3.0, bad faith under the UDRP is broadly understood to occur where a respondent takes unfair advantage of or otherwise abuses a complainant’s mark. To facilitate assessment of whether this has occurred, and bearing in mind that the burden of proof rests with the complainant, paragraph 4(b) of the Policy provides that any one of the following non-exclusive scenarios constitutes evidence of a respondent’s bad faith: (i) circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name 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 the respondent’s documented out-of-pocket costs directly related to the domain name; or (ii) the respondent has 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 the respondent has engaged in a pattern of such conduct; or (iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or (iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to its 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. In this regard, the Panel finds that at least the fourth of the above scenarios apply to the present case confirming the Respondent’s bad faith. The Respondent ignored its possibility to comment on the contrary and provide any good explanations to prove its good faith while registering and using the disputed domain name. Considering the above the Panel finds the disputed domain name was registered and is being used in bad faith. Therefore, the Complainant has established its case under paragraph 4(a)(iii) 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 Taras Kyslyy
(ii) the respondent must use the site to sell only the trademarked goods;
(iii) the site must accurately and prominently disclose the registrant’s relationship with trademark holder; and
(iv) the respondent must not try to “corner the market” in domain names reflecting trademark.
Sole Panelist
Date: April 22, 2020
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