The Complainant is Chewy, Inc., United States of America (“United States”), represented by Winterfeldt IP Group PLLC, United States.
The Respondent is Shanavas Mundolakkal, ADM, Qatar. 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 16, 2020. On November 17, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 17, 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 November 23, 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 November 24, 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 December 8, 2020. In accordance with the Rules, paragraph 5, the due date for Response was December 28, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 29, 2020. The Center appointed George R. F. Souter as the sole panelist in this matter on January 8, 2021. 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 the largest online retailer of pet food supply products in the United States, and has been trading under its CHEWY trademark since 2011. In 2019, its turnover was in the region of USD 4.8 billion, and its CHEWY trademark is heavily promoted. The Complainant is the proprietor of a number of registrations relating to its CHEWY trademark, including United States registration number 5028009, registered on August 23, 2016, and European Union registration number 016605834, registered on August 10, 2016. The disputed domain name was registered on September 26, 2020, and is currently in use in connection with a website offering for sale pet food products in direct competition with the Complainant's products. 5. Parties’ Contentions A. Complainant The Complainant alleges that the disputed domain name is confusingly similar to its CHEWY trademark, containing the Complainant’s trademark in its entirety, with the mere addition of the descriptive or non distinctive element “dogs”. The Complainant alleges that the Respondent lacks rights or legitimate interests in the disputed domain name, in particular that, to the best of the Complainant’s knowledge, the Respondent is not generally known by the disputed domain name, and the Complainant has never granted permission to the Respondent to use its CHEWY trademark in connection the registration of a domain name, or otherwise. The Complainant also alleges that the Respondent willfully adopted the Complainant’s trademark within the disputed domain name in an attempt to unfairly capitalize on the valuable goodwill the Complainant has built in its CHEWY trademark in order to sell the Respondent’s own competing pet supply products directly or to monetize the website through the Amazon Affiliate Program. The Complainant alleges that the disputed domain name was registered in bad faith, and is being used in bad faith in connection with a website offering goods for sale in direct competition with the goods traded in by the Complainant, either directly or by monetizing traffic and redirection to the Amazon.com marketplace through the Amazon Affiliate Program. The Complainant also alleges that the website located at the disputed domain name also contains a clearly false telephone number, placeholder testimonials, and other indicia indicating that the site is merely intended to draw consumers looking for the Complainant in order to monetize the traffic being directed to the Amazon affiliate links. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Paragraph 4(a) of the Policy lists three elements that the Complainant must prove to merit a finding that the disputed domain name be transferred to the Complainant: (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 From the information provided to the Panel, the Panel finds that the Complainant has sufficient rights to its CHEWY trademark for the purposes of these proceedings. It is well-established in prior decisions under the UDRP, with which the Panel agrees, that a generic Top-Level Domain (“gTLD”) indicator is irrelevant when comparing a trademark with a disputed domain name. Accordingly, the Panel considers the gTLD “.com” to be irrelevant in the circumstances of the present case, and so finds. It has been well-established in prior decisions under the UDRP that a disputed domain name which wholly contains a complainant’s trademark together with the mere addition of descriptive or non distinctive elements is insufficient to avoid a finding of confusing similarity between a trademark and a disputed domain name. In the circumstances of the present case, the Panel considers that the mere addition of the word “dogs” immediately preceding the Complainant’s CHEWY trademark, is clearly descriptive, and does not prevent the Complainant’s trademark from being recognizable in the disputed domain name. Accordingly, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s trademark, and that the Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests It is the consensus view of UDRP panels, with which the Panel agrees, that a prima facie case advanced by the complainant will generally be sufficient for the complainant to be deemed to have satisfied the requirement of paragraph 4(a)(ii) of the Policy, provided the respondent does not come forward with evidence demonstrating rights or legitimate interests in the domain name and the complainant has presented a sufficient prima facie case to succeed under paragraph 4(a)(ii) of the Policy. The Panel considers the submissions put forward by the Complainant as sufficient to be regarded as a prima facie case, and the Respondent did not take the opportunity to advance any claim of rights or legitimate interests in the disputed domain name to rebut this prima facie case. Accordingly, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith The Panel is of the view that the finding that a respondent has no rights or legitimate interests in a disputed domain name can lead, in appropriate circumstances, to a finding of registration of a disputed domain name in bad faith. The circumstance of the present case, in which the Panel is convinced that the Complainant's CHEWY trademark was deliberately appropriated in the disputed domain name, are such that the Panel concludes that a finding of registration in bad faith is justified, and so finds. It is well established in prior decisions under the Policy that the use of a disputed domain name in connection with a website offering goods competing with those of the complainant, constitutes use of the disputed domain name in bad faith. In the circumstances of the present case, in which the disputed domain name is being used in connection with a website offering for sale pet food products in direct competition with the Complainant's products, the Panel finds that the disputed domain name is being used in bad faith. The Panel, therefore, finds that the Complainant has satisfied the requirements of 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 George R. F. Souter
Sole Panelist
Date: January 25, 2021
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