Complainants are The Procter & Gamble Company, United States of America (“United States”) and Braun GmbH, Germany represented by Studio Barbero, Italy.
Respondent is c/o WHOIStrustee.com Limited, Registrant of braunlife.com, United Kingdom / Olga Trubchak, 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 December 4, 2020. On December 4, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On December 7, 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 Complainants on December 9, 2020, providing the registrant and contact information disclosed by the Registrar, and inviting Complainants to submit an amendment to the Complaint. Complainants filed an amendment to the Complaint on December 10, 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 Respondent of the Complaint, and the proceedings commenced on December 16, 2020. In accordance with the Rules, paragraph 5, the due date for Response was January 5, 2021. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on January 7, 2021. The Center appointed Richard W. Page as the sole panelist in this matter on January 25, 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. Complainants have requested that the Panel approve consolidation of their respective claims in this proceeding. The Panel finds that Complainants are related companies and have a common legal interest in these claims and approves the consolidation. 4. Factual Background Complainants are the owners of numerous trademark registrations for BRAUN in several countries, which trademarks are collectively referred to as the “BRAUN Mark.” These registrations include, without limitation, International Trademark Registration No. 652027 BRAUN Word Mark (November 14, 1995) in Classes 11, 14,16, 21, 26, 35 and 37 and International Trademark Registration No. 650428 BRAUN Word Mark (November 14, 1995) in Classes 1, 3, 7, 8, 9,10 and 11. Complainant The Procter & Gamble Company is one of the largest companies in the world and manufactures a wide range of consumer goods in diverse areas such as health care (baby, child, feminine care, etc.), hair care, cosmetics, laundry and fabrics care. Complainant The Procter & Gamble Company was founded in 1837 by William Procter and James Gamble and began as a family-run candle and soap business that would eventually grow into one of the largest and profitable consumer good companies in the world. In the beginning, the products were produced and commercialized in Cincinnati and the United States, but progressively Complainant The Procter & Gamble Company’s business expanded worldwide. Numerous new products and brand names were introduced over time, and Complainant The Procter & Gamble Company began branching out into new areas, also by acquiring other companies that diversified its product line. In 2005, Complainant The Procter & Gamble Company announced the acquisition of the Gillette Company. The acquisition added, besides the GILLETTE product line, also BRAUN to the stable. The Gillette Company had become the owner of this brand in 1984, after having already purchased a controlling interest in Complainant BRAUN GmbH in 1967. Complainant BRAUN GmbH was founded in 1921 by a man named Max Braun and started as a small engineering shop in Frankfurt am Main. Max Braun’s first product was a transmission belt connector that substantially reduced wear on transmission belts and, in 1929, he entered the radio industry, developing various items in said field. Complainant BRAUN GmbH in the 1950s further expanded its business by launching the first electronic razors and a Multimix kitchen blender, entering the shaving and the kitchen household appliance segments. At the end of the 1960s, the BRAUN products portfolio included radios and phonographic, televisions, shavers, kitchen appliances, lighters and photographic equipment and the acquisitions of controlling interest in Complainant BRAUN GmbH by the Gillette Company – that at that time was already a weighty industrial giant – opened up new sales channels for BRAUN items in 145 countries. By the 1960s, BRAUN had become an internationally renowned brand for small electrical appliances, characterized by technical innovation and long-lasting quality. In 1971, Complainant BRAUN GmbH launched its clocks, watches and pocket calculator product group, developing a strong reputation also in said sector. In the second half of the 1980s, Complainant BRAUN GmbH reached double digit sales growth across all three product divisions - shavers, household appliances and hair. In 1988, the French Silk-épil was acquired and the first BRAUN epilator came to market as well – soon to become one of the leading global brands among women’s beauty products. After its acquisition in October 2005 by Complainant The Procter & Gamble Company, Complainant BRAUN GmbH became one of 23 global brands in the consumer goods group that achieved annual sales of more than USD 1 billion. Complainants operate within an extensive sales network consisting of about 100,000 employees in over 180 countries and through their distributions channels BRAUN products are distributed worldwide and also in the United Kingdom, where the shield company indicated in WhoIs Database is based. Complainants’ sales in 2018/2019 were USD 1,030.2 million worldwide. Complainants have invested a substantial amount of time and resources to promote and advertise their trademarks and the associated products and services through television and other media. The BRAUN Mark was and presently is strongly supported by intensive advertising campaigns worldwide. In the last fiscal years, Complainants invested USD 180 million to promote the BRAUN Mark. Besides the traditional advertising channels, BRAUN has been widely promoted via Internet, in particular with a strong presence online through the most popular social media (Facebook, Twitter and YouTube), with channels and pages specifically dedicated to the BRAUN Mark. Complainants have registered hundreds of domain names worldwide consisting of or comprising the BRAUN Mark. Complainants principal websites for the advertising and sale of products are “www.braun.com” and for British consumers “www.uk.braun.com”. The Disputed Domain Name was registered on May 23, 2020 and previously resolved to a website offering Complainants’ products. The Disputed Domain Name currently does not resolve to an active website. Complainants became aware of Respondent’s website to which the Disputed Domain Name resolved and of customer complaints about the billing practices associated with the website. Complainants investigated the registration of the Disputed Domain Name and sent a cease and desist letter. Complainants received no reply. 5. Parties’ Contentions A. Complainant Complainants contend that the Disputed Domain Name is confusingly similar to the BRAUN Mark because it incorporates the entirety of the BRAUN Mark with only the addition of the non-distinctive word “life”. Complainants further contend that the addition of the generic Top-Level Domain (“gTLD”) “.com” is to be disregarded in any analysis of confusing similarity. Complainants allege that Respondent has no rights or legitimate interests in the Disputed Domain Name. Complainants further allege that Respondent is not a licensee or authorized agent of Complainants or in any other way authorized to use the BRAUN Mark. Complainants further allege that Respondent is not commonly known by a name corresponding to the Disputed Domain Name and had made no demonstrable preparations to use the Disputed Domain Name in connection with a bona fide offering of goods or services before or after any notice of this dispute. Complainants aver that Respondent has used the BRAUN Mark and offered for sale unauthorized products under the BRAUN Mark at discounted prices. Complainants further aver that such willful conduct clearly demonstrates that Respondent does not intend to use the Disputed Domain Name in connection with any legitimate purpose or its use cannot be considered a legitimate noncommercial or fair use without intent for commercial gain. Complainants further aver that Respondent is gaining from the sale of the products promoted on this website. Complainants further aver that Respondent is engaging in fraudulent activity aimed at deceiving unsuspecting Internet users by taking unfair advantage of the reputation and goodwill of the BRAUN Mark. Complainants contend that Respondent has registered and is using the Disputed Domain Name in bad faith. Complainants further contend that Respondent has actual knowledge of the BRAUN Mark and of Complainants’ rights in the BRAUN Mark. Complainants further contend that Respondent’s intent was to use the Disputed Domain Name to intentionally attempt to attract, for commercial gain, Internet users to such website, by creating a likelihood of confusion with the BRAUN Mark as to the source or affiliation of the website and taking unfair advantage from the well-known character of the BRAUN Mark for Respondent’s personal profit. B. Respondent Respondent did not reply to Complainants’ contentions. 6. Discussion and Findings Paragraph 15(a) of the Rules instructs the Panel as to the principles the Panel is to use in determining the dispute: “A Panel shall decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules, and any rules and principles of law that it deems applicable.” Even though Respondent has failed to file a Response or to contest Complainants’ assertions, the Panel will review the evidence proffered by Complainants to verify that the essential elements of the claims are met. See section 4.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”). Paragraph 4(a) of the Policy directs that Complainants must prove each of the following: i) that the Disputed Domain Name registered by Respondent is identical or confusingly similar to the BRAUN Mark in which Complainants have rights; and ii) that Respondent has no rights or legitimate interests in respect of the Disputed Domain Name; and iii) that the Disputed Domain Name has been registered and is being used in bad faith. A. Identical or Confusingly Similar Complainants argue that the Disputed Domain Name is identical or confusingly similar to the BRAUN Mark pursuant to paragraph 4(a)(i) of the Policy. Section 1.2.1 of the WIPO Overview 3.0 states that registration of a trademark prima facie satisfies the threshold requirement of having trademark rights for purposes of standing to file a UDRP case. Complainants are the owners of numerous trademark registrations for BRAUN in several countries. These registrations include, without limitation, International Trademark Registration No. 652027 BRAUN Word Mark (November 14, 1995) in Classes 11, 14,16, 21, 26, 35 and 37 and International Trademark Registration No. 650428 BRAUN Word Mark (November 14, 1995) in Classes 1, 3, 7, 8, 9,10 and 11. Section 1.7 of the WIPO Overview 3.0 says that inclusion of the entire trademark in a domain name will be considered confusingly similar. Also see section 1.8 of the WIPO Overview 3.0 which instructs that the addition of other terms (whether descriptive, geographical, pejorative, meaningless or otherwise) does not prevent a finding of confusing similarity. Also see section 1.11.1 of the WIPO Overview 3.0 which instructs that gTLDs such as “.com” may be disregarded for purposes of assessing confusing similarity. The Panel finds that the entirety of the BRAUN Mark is included within the Disputed Domain Name, together with the term “life”. In addition, the gTLD “.com” is not considered. The Panel finds that the Disputed Domain Name is confusingly similar to the BRAUN Mark and that Complainants have satisfied the elements of paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests Complainants contend that Respondent has no rights or legitimate interest in the Disputed Domain Name pursuant to paragraph 4(a)(ii) of the Policy. Section 2.1 of the WIPO Overview 3.0 states that once a complainant makes a prima facie case in respect of the lack of rights or legitimate interests of a respondent, the respondent carries the burden of demonstrating it has rights or legitimate interests in the domain name. Where the respondent fails to do so, a complainant is deemed to have satisfied paragraph 4(a)(ii) of the Policy. Paragraph 4(c) of the Policy allows three nonexclusive methods for the Panel to conclude that Respondent has rights or a legitimate interest in the Disputed Domain Name: (i) before any notice to you [Respondent] of the dispute, your 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) you [Respondent] (as an individual, business, or other organization) have been commonly known by the Disputed Domain Name, even if you have acquired no trademark or service mark rights; or (iii) you [Respondent] are 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 BRAUN Mark. Complainants allege that Respondent is not a licensee or authorized agent of Complainants or in any other way authorized to use the BRAUN Mark. Complainants further allege that Respondent is not commonly known by a name corresponding to the Disputed Domain Name and had made no demonstrable preparations to use the Disputed Domain Name in connection with a bona fide offering of goods or services before or after any notice of this dispute. Complainants further allege that Respondent has used the BRAUN Mark and offered for sale unauthorized products under the BRAUN Mark at discounted prices. Complainants further allege that such willful conduct clearly demonstrates that Respondent does not intend to use the Disputed Domain Name in connection with any legitimate purpose or its use cannot be considered a legitimate noncommercial or fair use without intent for commercial gain. Complainants further aver that Respondent is gaining from the sale of the products promoted on this website. Complainants further aver that Respondent is engaging in fraudulent activity aimed at deceiving unsuspecting Internet users by taking unfair advantage of the reputation and goodwill of the BRAUN Mark. The Panel finds that Complainants have established a prima facie case in respect of lack of rights and legitimate interests by Respondent. Respondent has failed to contest these allegations. Therefore, the Panel finds that Complainants have satisfied the elements of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith Complainants contend that Respondent registered and is using the Disputed Domain Name in bad faith in violation of paragraph 4(a)(iii) of the Policy. Paragraph 4(b) of the Policy sets forth four nonexclusive criteria for Complainants to show bad faith registration and use of the Disputed Domain Name: (i) circumstances indicating that you [Respondent] have registered or you have acquired the Disputed Domain Name primarily for the purpose of selling, renting, or otherwise transferring the Disputed Domain Name registration to Complainants as the owners of the BRAUN Mark or to a competitor of Complainants, for valuable consideration in excess of your documented out-of-pocket costs directly related to the Disputed Domain Name; or (ii) you [Respondent] have registered the Disputed Domain Name in order to prevent the owner of the BRAUN Mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or (iii) you [Respondent] have registered the Disputed Domain Name primarily for the purpose of disrupting the business of a competitor; or (iv) by using the Disputed Domain Name, you [Respondent] have intentionally attempted to attract, for commercial gain, Internet users to your website or other online location, by creating a likelihood of confusion with the BRAUN Mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product. Complainants contend that Respondent has actual knowledge of the BRAUN Mark and of Complainants’ rights in the BRAUN Mark. Complainants further contend that Respondent’s intent was to use the Disputed Domain Name to intentionally attempt to attract, for commercial gain, Internet users to such website, by creating a likelihood of confusion with the BRAUN Mark as to the source or affiliation of the website and taking unfair advantage from the well-known character of the BRAUN Mark for Respondent’s personal profit. Respondent has failed to contest these allegations and the Panel finds that the allegations are supported by the evidence in the file. The fact that the Disputed Domain Name currently does not resolve to an active website does not prevent a finding of bad faith. Therefore, the Panel finds that Complainants have satisfied the elements of paragraph 4(b)(iv) of the Policy and 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, Richard W. Page
Sole Panelist
Date: February 5, 2021
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