The Complainant is FrieslandCampina Nederland B.V., Netherlands, represented by HGF Law, Netherlands.
The Respondent is Registration Private, Domains By Proxy, LLC, United States of America (“United States”) / Dean Eaker, 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 9, 2020. On December 9, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 9, 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 January 4, 2021 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 January 8, 2021. 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 January 15, 2021. In accordance with the Rules, paragraph 5, the due date for Response was February 4, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 18, 2021. The Center appointed Miguel B. O'Farrell as the sole panelist in this matter on February 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. Factual Background A search in Google shows that the Complainant, FrieslandCampina Nederland B.V., operates a dairy producer and distributor which offers cream and butter products for infant nutrition, food industries and pharmaceutical sectors. It is the result of a merger between Friesland Foods and Campina on December 31, 2008. The Complainant owns many trademark registrations for the word mark FRIESLANDCAMPINA and word and device mark FRIESLANDCAMPINA in several jurisdictions (such as Benelux, China, Pakistan, and others), including the following: - Benelux: Trademark FRIESLANDCAMPINA Registration No. 857413, registered on April 10, 2009 in classes 1, 5, 29, 30 and others. The relevant application was filed on January 17, 2009; and - China: Trademark FRIESLANDCAMPINA Registration No. 16160045, registered on March 21, 2016 in class 29. The disputed domain name The Complainant claims that the disputed domain name is confusingly similar with the trademark FRIESLANDCAMPINA in which the Complainant has rights; that the Respondent has no rights or legitimate interests in the disputed domain name, which was registered and is being used in bad faith. An employee of the Complainant had correspondence with a Jordan business relation regarding an outstanding invoice on 24 and 25 November 2020. The correspondence was continued with email addresses corresponding with earlier names, but from an address which coincided with the disputed domain name A few more e-mails from the subject e-mail address “[…]@friseslandcampina.com” followed on 26 and 29, November 2020 again requesting payment of the invoice. In summary, the disputed domain name has been used to create email addresses with the names of employees of the Complainant in order to create confusion and commit fraud. Finally, the Complainant requests the Panel to issue a decision ordering that the disputed domain name be transferred to the Complainant. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the disputed domain name, the Complainant must prove each of the following, namely that: (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 was registered and is being used in bad faith. A. Identical or Confusingly Similar The Panel is satisfied that the Complainant has proved that it has rights in the FRIESLANDCAMPINA trademark. As set forth in section 1.7 of WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“ WIPO Overview 3.0”) the standing test for confusing similarity involves a reasoned but relatively straightforward comparison between the trademark and the disputed domain name to determine whether the disputed domain name is confusingly similar with the trademark. The test involves a side-by-side comparison of the disputed domain name and the textual components of the relevant trademark to assess whether the mark is recognizable within the disputed domain name. The Panel considers that the disputed domain name is confusingly similar with the Complainant’s FRIESLANDCAMPINA trademark. The disputed domain name is almost identical to the Complainant’s trademark FRIESLANDCAMPINA, since only one letter “s” has been placed in between the sixteen identical characters. In the Panel’s view this is a clear case of “typosquating”. For the purposes of assessing identity or confusing similarity under paragraph 4(a)(i) of the Policy, it is permissible for the Panel to ignore the generic Top-Level Domain (“gTLD”) as it is viewed as a standard registration requirement (section 1.11 of WIPO Overview 3.0). Thus, for the test for confusing similarity the Panel shall disregard the “.com” gTLD included in the disputed domain name. The Panel finds that the disputed domain name is confusingly similar with the FRIESLANDCAMPINA trademark in which the Complainant has rights and that the requirements of paragraph 4(a)(i) of the Policy therefore are fulfilled. B. Rights or Legitimate Interests Pursuant to paragraph 4(c) of the Policy, a respondent may establish rights to or legitimate interests in a domain name by demonstrating any of the following non-exclusive defenses: (i) before any notice to it of the dispute, the respondent’s use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or (ii) the respondent has been commonly known by the domain name, even if it has acquired no trademark or service mark rights; or (iii) the respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain, to misleadingly divert consumers. Although the Policy addresses ways in which a respondent may demonstrate rights or legitimate interests in a disputed domain name, it is well established, as it is put in section 2.1 of WIPO Overview 3.0, that a complainant is required to make out a prima facie case that the respondent lacks rights or legitimate interests in the domain name. Once such prima facie case is made, the burden of production shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the disputed domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element. There is no evidence in the present case that the Respondent has been commonly known by the disputed domain name, enabling it to establish rights or legitimate interests therein. Furthermore, there is no evidence in the file to prove any of the circumstances mentioned in paragraph 4(c) of the Policy, nor any other to prove that the Respondent has legitimate interests or that it has established rights in the disputed domain name. Likewise, and as further discussed under section 6.C of this decision, the Respondent is not making any legitimate noncommercial or fair use of the disputed domain name, but rather intends to use the disputed domain name for fraudulent purposes. As established in section 2.5 of WIPO Overview 3.0: “Fundamentally, a respondent’s use of a domain name will not be considered ‘fair’ if it falsely suggests affiliation with the trademark owner; the correlation between a domain name and the complainant’s mark is often central to this inquiry.” As indicated in Section 6.A above, the disputed domain name is confusingly similar with the FRIESLANDCAMPINA trademark. The Panel finds that the Complainant has made out a prima facie case, a case calling for an answer from the Respondent. The Respondent has not responded and the Panel is unable to conceive of any basis upon which the Respondent could sensibly be said to have any rights or legitimate interests in respect of the disputed domain name (Telstra Corporation Ltd. v. Nuclear Marshmallows,WIPO Case No. D2000-0003). The Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name and that the requirements of paragraph 4(a)(ii) of the Policy have been fulfilled. C. Registered and Used in Bad Faith The Respondent has targeted the Complainant’s trademark FRIESLANDCAMPINA largely used and registered well before the Respondent registered the disputed domain name on November 25, 2020. The Complainant has proved with copies of emails attached to the case record that around the same time the disputed domain name was used to create email addresses with the names of employees of the Complainant in order to create confusion and commit fraud. As set forth in section 3.4 of WIPO Overview 3.0, Panels have held that the use of a domain name for purposes other than to host a website may constitute bad faith. Many such cases involve the respondent’s use of the domain name to send deceptive emails, e.g. to solicit payment of fraudulent invoices and/or request that payments be made to bank accounts that do not belong to the proper party who should receive the payment. Based on the evidence in the file produced by the Complainant, the Panel considers that the disputed domain name has been registered and used for the purpose creating confusion and committing fraud. Thus, the requirement of paragraph 4(a)(iii) of the Policy has been fulfilled. 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 Miguel B. O'Farrell
Sole Panelist
Date: March 10, 2021
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