The Complainant is FrieslandCampina Nederland B.V., Netherlands, represented by HGF Law, Netherlands.
The Respondent is Ana Velaz, United States of America (“United States”). 2. The Domain Name and Registrar
The Disputed Domain Name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 27, 2020. On July 28, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On July 28, 2020, 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 July 31, 2020. In accordance with the Rules, paragraph 5, the due date for Response was August 20, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 21, 2020. The Center appointed Pablo A. Palazzi as the sole panelist in this matter on September 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, FrieslandCampina Nederland B.V. is a Dutch multinational dairy cooperative, which is based in Amersfoort, Netherlands. The Complainant is the owner of numerous trademark registrations of the term FRIESLANDCAMPINA in many jurisdictions throughout the world, among others: - Benelux trademark FRIESLANDCAMPINA, Registration No. 857413, registered on April 10, 2009; The Respondent registered the Disputed Domain Name The Complainant contentions can be summarized as follows: Identical or confusingly similar The Complainant contends that the Disputed Domain Name is a visual and aural point of view nearly identical to the Complainant’s trademark FRIESLANDCAMPINA, as only one letter out of sixteen is different. In this sense, the letter “n” of CAMPINA was replaced by an “m”, this difference is both visually and aurally hardly noticeable. The Complainant further states that since these letters are placed next to each other on a so-called “QWERTY” keyboard, confusion is easily created by a typo, when searching for or typing the Complainant’s name on a computer. Finally the Complainant states that the company FrieslandCampina is the result of the merger between the companies Friesland Foods and Campina on December 31, 2008. Rights or legitimate interest The Complainant contends that there is no evidence of the Respondent’s use of, or demonstrable preparations to use, the Disputed Domain Name in connection with a bona fide offering of goods or services. In addition, there is no indication that the Respondent (as an individual, business, or other organization) has been commonly known by the Disputed Domain Name Finally, the Complainant alleges that there is no indication that the Respondent is making a legitimate noncommercial or fair use of the Disputed Domain Name. Registration and use in bad faith The Complainant alleges that it has been notified by a business relation, who received an email with attachments. In this sense, the Complainant’s sales manager had correspondence with a Republic of Korea agent on payment of invoices in the amount of EUR 87.000 on July 1 and 2, 2020. The correspondence was continued with email addresses corresponding with the names of employees, but from A letter from Complainant’s Financial Shared Services was attached requesting payment to a bank account in Germany in the name of Friesland Campina. However, this account is not owned by the Complainant. Based on the above, the Disputed Domain Name has been used to create email addresses with the names of the Complainant’s employees in order to create confusion and commit fraud. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings 6.1. Substantive Matters Paragraph 4(a) of the Policy lists the three elements, which the Complainant must satisfy with respect to the Disputed Domain Name in this case: (i) the Disputed Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and (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 Based on the evidence submitted, the Panel finds that the Disputed Domain Name This is a classic example of typosquatting. As section 1.9 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) states: “A domain name which consists of a common, obvious, or intentional misspelling of a trademark is considered by panels to be confusingly similar to the relevant mark for purposes of the first element. […] Examples of such typos include (i) adjacent keyboard letters, (ii) substitution of similar-appearing characters (e.g., upper vs lower-case letters or numbers used to look like letters), (iii) the use of different letters that appear similar in different fonts, (iv) the use of non-Latin internationalized or accented characters, (v) the inversion of letters and numbers, or (vi) the addition or interspersion of other terms or numbers.” Therefore, the Panel concludes that the Complainant has satisfied the first requirement of paragraph 4(a) of the Policy. B. Rights or Legitimate Interests Paragraph 4(c) of the Policy provides a list of circumstances, any of which is sufficient to demonstrate that the Respondent has rights or legitimate interests in the 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 trademark 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 trademark or service at issue. There is no evidence of the existence of any of those rights or legitimate interests. The Complainant has not authorized, licensed, or permitted the Respondent to register or use the Disputed Domain Name or to use the trademark in the Disputed Domain Name. Furthermore, the Respondent is not known by the Disputed Domain Name. The Respondent has failed to show that it has acquired any rights with respect to the Disputed Domain Name. In addition, according to the Complainant, the Respondent had created a fake email account in order to request a payment and commit fraud. Panels have categorically held that the use of a domain name for illegal activity (e.g., the sale of counterfeit goods or illegal pharmaceuticals, phishing, distributing malware, unauthorized account access/hacking, impersonation/passing off, or other types of fraud) can never confer rights or legitimate interests on a respondent. See section 2.13 of the WIPO Overview 3.0. As such, the Panel finds that the Complainant has satisfied the second requirement of paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith Paragraph 4(a)(iii) of the Policy provides that the Complainant must establish that the Respondent registered and subsequently used the Disputed Domain Name in bad faith. The fact that the Disputed Domain Name consists of an obvious or intentional misspelling of the Complainant’s trademark, which reproduces the Complainant’s trademark almost entirely, establishes that the Respondent was well aware of the Complainant’s trademark when registering the Disputed Domain Name. Moreover, the Respondent used the Disputed Domain Name in a fake email account pretending to be an employee of the Complainant, deceiving a sales manager regarding a payment. This fact shows that the Respondent was well aware of the Complainant and its business and trademark when it registered the Disputed Domain Name. Furthermore, the Disputed Domain Name is nearly identical to the Complainant’s trademark and domain name, which it uses for its email address system and thereby deliberately attempts to disrupt the Complainant’s business. In addition, the Respondent did not submit any explanation or possible justification for its use of the Disputed Domain Name. Due to this conduct, it is obvious that the Respondent intentionally created a likelihood of confusion with the Complainant’s trademark and its domain name for the purpose of disrupting the business of the Complainant. Therefore, taking all the circumstances into account and for all the above reasons, the Panel concludes that the Respondent has registered and used the Disputed Domain Name 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, Pablo A. Palazzi
- Monaco Trademark FRIESLANDCAMPINA, Registration No. 1021762, registered on July 27, 2009; and
- North Korea Trademark FRIESLANDCAMPINA, Registration No. 1021762, registered on July 27, 2009.
Sole Panelist
Date: September 16, 2020
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