The Complainant is Tetra Laval Holdings & Finance S.A., Switzerland, represented by Aera A/S, Denmark.
The Respondent is Whois Agent (693439573), Whois Privacy Protection Service, Inc., United States of America (“United States”) / József Buda, Hungary. 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 19, 2020. On November 19, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 19, 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 27, 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 3, 2020. In accordance with the Rules, paragraph 5, the due date for Response was December 23, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 24, 2020. The Center appointed Wilson Pinheiro Jabur as the sole panelist in this matter on January 20, 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 a Swiss corporation, part of the Tetra Laval Group, a multinational food processing and packaging company founded in 1947 in Sweden. It is the owner of the following, amongst others, trademark registrations (Annexes D and E to the Complaint): - European Union trademark registration No. 001202522 for the word mark TETRA PAK filed on June 10,1999, registered on October 2, 2000, and subsequently renewed, in International classes 6, 7, 9, 11, 16, 17, 20, 21, 29, 30, 32, 33 and 37; and - International trademark registration No. 1146433 for the word mark TETRA PAK, registered on June 6, 2012, in International classes 7, 11, 16, 29, 30, 32, 33, 37 and 42. The disputed domain name The Complainant asserts to be the world leader in the development, marketing and sale of equipment for food processing, packaging and distribution, currently employing more than 25,000 people and present in more than 160 countries around the world. The Complainant further asserts that by virtue of the Complainant’s long standing use of the TETRA PAK trademark, it became exclusively associated with the Complainant and is undisputedly considered well-known within its field of business, what is corroborated by previous UDRP decisions such as Tetra Laval Holdings & Finance S.A. v. TetraPak Global PH-AU, Gerald Smith,WIPO Case No. D2012-0847; Tetra Laval Holdings & Finance S.A. v. Kilt Kully, Huy,WIPO Case No. D2019-0802; and Tetra Laval Holdings & Finance S.A. v. ddd Firat, Analiz,WIPO Case No. D2019-2864. In the Complainant’s view, the disputed domain name reproduces the Complainant’s well-known trademark with the generic term “parts” which is not sufficient to overcome the confusing similarity with the Complainant’s trademark. Moreover, the Complainant contends that the Respondent has no rights or legitimate interests in the disputed domain name given that: (i) the Respondent is not affiliated or related to the Complainant in any way, nor licensed or otherwise authorized to use the TETRA PAK trademark in connection with the disputed domain name or for any other purpose; (ii) the Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services; (iii) the Respondent has not been commonly known by the disputed domain name, nor does it hold trademarks relating to the disputed domain name; and (iv) the disputed domain name does not resolve to an active webpage but appears to have e-mail servers set up what indicates that it might have been used in connection with e-mail addresses (Annex H to the Complaint). As to the registration of the disputed domain name in bad faith the Complainant argues that in light of the well-known status of the TETRA PARK trademark and the Complainant’s worldwide business, the Respondent specifically targeted the Complainant seeking to create a false association, sponsorship or endorsement with the Complainant. Given the MX-records that are set up for the disputed domain name (Annex H to the Complaint), the Complainant contends that there is a risk that Respondent is using the disputed domain name in e-mail communication in an attempt to pass off as the Complainant for fraudulent purposes. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Paragraph 4(a) of the Policy sets forth the following three requirements, which have to be met for this Panel to order the transfer of the disputed domain name 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. The Complainant must prove in this administrative proceeding that each of the aforementioned three elements is present in order to obtain the transfer of the disputed domain name. In accordance with paragraph 14(a) of the Rules, if the Respondent does not submit a Response, in the absence of exceptional circumstances, the Panel shall decide the dispute based upon the Complaint. A. Identical or Confusingly Similar The Complainant has established its rights in the registered TETRA PAK trademark. The Panel finds that the disputed domain name reproduces the Complainant’s trademark in its entirety and is therefore confusingly similar to it. It is well accepted that the first element functions primarily as a standing requirement and that the threshold test for confusing similarity involves a “reasoned but relatively straightforward comparison between the complainant’s trademark and the disputed domain name”. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), sections 1.7 and 1.10). The first element of the Policy has therefore been established. B. Rights or Legitimate Interests Paragraph 4(c) of the Policy provides a non-exclusive list of circumstances that indicate a respondent’s rights to or legitimate interests in a disputed domain name. These circumstances are: (i) before any notice 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, in spite of not having acquired 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 mark at issue. The Respondent, in not formally responding to the Complaint, has failed to invoke any of the circumstances, which could demonstrate, pursuant to paragraph 4(c) of the Policy, any rights to or legitimate interests in the disputed domain name. This entitles the Panel to draw any such inferences from such default as it considers appropriate pursuant to paragraph 14(b) of the Rules. Nevertheless, the burden of proof is still on the Complainant to make a prima facie case against the Respondent. In that sense, the Complainant indeed states that the Respondent is not affiliated or related to the Complainant in any way, not having licensed or otherwise authorized to use the TETRA PAK trademark in connection with the disputed domain name or for any other purpose. Also, the lack of evidence as to whether the Respondent is commonly known by the disputed domain name or the absence of any trademarks registered by the Respondent corresponding to the disputed domain name, corroborates with the indication of the absence of a right or legitimate interest in the disputed domain name. Under these circumstances and absent evidence to the contrary, the Panel finds that the Respondent does not have rights or legitimate interests with respect to the disputed domain name. The second element of the Policy has therefore been established. C. Registered and Used in Bad Faith The Policy indicates in paragraph 4(b) that bad faith registration and use can be found in view of: (i) circumstances indicating that the Respondent has registered or acquired the disputed domain name primarily for the purpose of selling, renting, or otherwise transferring it to the Complainant who is the owner of a trademark relating to the disputed domain name or to a competitor of the Complainant, for valuable consideration in excess of the Respondent’s documented out-of-pocket costs directly related to the disputed domain name; or (ii) the Respondent has registered the disputed 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 disputed domain name primarily for the purpose of disrupting the business of a competitor; or (iv) by using the disputed domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to the Respondent’s website or other 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. The registration and use of the disputed domain name in bad faith can be found in the present case in view of the following circumstances: (i) the Respondent has provided no evidence whatsoever of any actual or contemplated good faith use of the disputed domain name; (ii) the Respondent’s potential use of the disputed domain name in connection with email addresses (Annex H to the Complaint); (iii) the well-known status of the Complainant’s trademark and the nature of the disputed domain name (reproducing the entirety of the Complainant’s trademark) suggests rather a clear indication of the Respondent’s registration and holding of the disputed domain name in bad faith, with the implausibility of any good faith use to which the disputed domain name may be put; and (iv) the use of a false address in the WhoIs data and, consequently, the Center not being able to have communications fully delivered to it. For the reasons as those stated above, the Panel finds that the disputed domain name was registered and is being used in bad faith pursuant to paragraph 4(b)(i) of the Policy. The third element of the Policy has therefore 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, Wilson Pinheiro Jabur
Sole Panelist
Date: February 3, 2021
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