The Complainant is Sealed Air Corporation (US), United States of America (“US”), represented by Nelson Mullins Riley & Scarborough, L.L.P., US.
The Respondent is Registration Private, Domains By Proxy, LLC, US / Amit Chawla, India. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 23, 2021. On March 23, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On March 23, 2021, 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 March 30, 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 March 30, 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 April 8, 2021. In accordance with the Rules, paragraph 5, the due date for Response was April 28, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 30, 2021. The Center appointed Nick J. Gardner as the sole panelist in this matter on May 14, 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 US corporation founded in 1960, and is a multi-national business manufacturing food, protective, and specialty packaging materials. The Complainant has over 16,000 employees and currently operates in 48 countries or territories throughout the world, including, but not limited to, the United States, Argentina, Australia, Brazil, Canada, China, the European Union, Hong Kong, China, India, Israel, Japan, Mexico, New Zealand, Peru, the Russian Federation, South Africa, Republic of Korea, Taiwan Province of China, Turkey, United Arab Emirates, and the United Kingdom. The Complainant distributes its food, protective, and specialty packaging materials products to around 120 countries/territories around the world. The Complainant has used the words SEALED AIR internationally in connection with its goods for decades. The Complainant owns numerous US and international trademark registrations for SEALED AIR alone, including for example three US registrations - No. 925912, registered December 21, 1971; No. 1580890, registered February 6, 1990; and No. 2534715, registered January 29, 2002. These trademarks are referred to in this decision as the “SEALED AIR trademark”. In 2020, the Complainant generated USD 4.9 Billion in sales. The Disputed Domain Name was registered on February 23, 2021. There is no evidence it has ever been used. 5. Parties’ Contentions A. Complainant The Complainant alleges that the Disputed Domain Name is identical or confusingly similar to the Complainant’s SEALED AIR trademark because the Disputed Domain Name incorporates the Complainant’s mark in its entirely with a typographical variation by inclusion of an extra “e”. It says it is well established that domain names which are typographical variations of a trademark are confusingly similar to that trademark. The Complainant also alleges that the Respondent has no rights or legitimate interests in the Disputed Domain Name. It says it has not authorized, licensed, or otherwise permitted the Respondent to use its SEALED AIR trademark or to apply for any domain name incorporating the trademark. The Complainant says the Respondent’s bad faith registration of the Disputed Domain Name is clear. It says its SEALED AIR trademark is a highly distinctive trademark that has been in use since 1963, and is well known. It refers to WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 3.1.1 and the cases there cited. It also says bad faith registration can be found where a respondent “knew or should have known” of the complainant’s trademark rights and nevertheless registered a domain name in which he had no rights or legitimate interests. The Complainant says the fact that the Disputed Domain Name does not resolve to an active website and is being passively held does not obviate a finding of bad faith and refers to Magazine Publishers Inc. and Les Publications Conde Nast S.A. v. ChinaVogue.com,WIPO Case No. D2005-0615, and says the same principles apply here. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Preliminary Matters The Panel notes that no communication has been received from the Respondent. However, given the Complaint and Written Notice were sent to the relevant addresses disclosed by the Registrar, then the Panel considers that this satisfies the requirement in paragraph 2(a) of the UDRP Rules to “employ reasonably available means calculated to achieve actual notice”. Accordingly, the Panel considers it is able to proceed to determine this Complaint and to draw inferences from the Respondent’s failure to file any Response. While the Respondent’s failure to file a Response does not automatically result in a decision in favor of the Complainant, the Panel may draw appropriate inferences from the Respondent’s default (see, e.g., Verner Panton Design v. Fontana di Luce Corp,WIPO Case No. D2012-1909). The Panel also notes this is a case where one Respondent (“Registration Private, Domains By Proxy, LLC”) appears to be a privacy or proxy service. The Panel in this case adopts the approach of most UDRP panels, as outlined WIPO Overview 3.0 at section 4.4.5, as follows: “Panel discretion In all cases involving a privacy or proxy service and irrespective of the disclosure of any underlying registrant, the appointed panel retains discretion to determine the respondent against which the case should proceed. Depending on the facts and circumstances of a particular case, e.g., where a timely disclosure is made, and there is no indication of a relationship beyond the provision of privacy or proxy registration services, a panel may find it appropriate to apply its discretion to record only the underlying registrant as the named respondent. On the other hand, e.g., where there is no clear disclosure, or there is some indication that the privacy or proxy provider is somehow related to the underlying registrant or use of the particular domain name, a panel may find it appropriate to record both the privacy or proxy service and any nominally underlying registrant as the named respondent.” In the present case, the Panel considers the substantive Respondent to be Amit Chawla and references to the Respondent are to that person. Substantive Matters To succeed, in accordance with paragraph 4(a) of the Policy, the Complainant must satisfy the Panel that: (i) the Disputed Domain Name is identical with 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 The Complainant has rights in the SEALED AIR trademark. The Panel finds the Disputed Domain Name is confusingly similar to this trademark. It simply adds an extra letter “e” into the trademark. The Panel agrees in this regard with the approach set out in WIPO Overview 3.0, section 1.9, namely: “Is a domain name consisting of a misspelling of the complainant’s trademark (i.e., typosquatting) confusingly similar to the complainant’s mark? 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.” It is also well established that the generic Top-Level Domain (“gTLD”), in this case “.com”, does not affect the Disputed Domain Name for the purpose of determining whether it is identical or confusingly similar. See, for example, Rollerblade, Inc. v. Chris McCrady,WIPO Case No. D2000-0429. Accordingly, the Panel finds that the Disputed Domain Name is confusingly similar to the Complainant’s trademark and hence the first condition of paragraph 4(a) of the Policy has been fulfilled. B. Rights or Legitimate Interests The Panel finds the SEALED AIR trademark is, on the evidence before the Panel, a term in which the Complainant has developed a significant reputation. Paragraph 4(c) of the Policy provides a list of circumstances any of which is sufficient to demonstrate that a respondent has rights or legitimate interests in a domain name: (i) before any notice to the respondent of the dispute, 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 the respondent 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 or to tarnish the trademark or service mark at issue. None of these apply in the present circumstances. The Complainant has not authorised, licensed, or permitted the Respondent to register or use the Disputed Domain Name or to use SEALED AIR trademark. The Complainant has prior rights in the SEALED AIR trademark which precede the Respondent’s acquisition of the Disputed Domain Name. The Complainant has therefore established a prima facie case that the Respondent does not have any rights or legitimate interests in the Disputed Domain Name and thereby the burden of production shifts to the Respondent to produce evidence demonstrating rights or legitimate interests in respect of the Disputed Domain Name (see, for example, Do The Hustle, LLC v. Tropic Web,WIPO Case No. D2000-0624; Croatia Airlines d.d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455). The Panel finds that the Respondent has failed to produce any evidence to establish his rights or legitimate interests in the Disputed Domain Name. Accordingly, the Panel finds the Respondent has no rights or any legitimate interests in the Disputed Domain Name and the second condition of paragraph 4(a) of the Policy has been fulfilled. C. Registered and Used in Bad Faith There is no evidence that the Respondent has made use of the Disputed Domain Name. The Panel infers that the Respondent chose the Disputed Domain Name precisely because it was a typographical variation of the Complainant’s well-known SEALED AIR trademark – no other credible explanation seems likely. In these circumstances, the Panel adopts the approach set out in the WIPO Overview 3.0 at section 3.3 as follows: “Can the ‘passive holding’ or non-use of a domain name support a finding of bad faith? From the inception of the UDRP, panelists have found that the non-use of a domain name (including a blank or ‘coming soon’ page) would not prevent a finding of bad faith under the doctrine of passive holding. While panelists will look at the totality of the circumstances in each case, factors that have been considered relevant in applying the passive holding doctrine include: (i) the degree of distinctiveness or reputation of the complainant’s mark, (ii) the failure of the respondent to submit a response or to provide any evidence of actual or contemplated good-faith use, (iii) the respondent’s concealing its identity or use of false contact details (noted to be in breach of its registration agreement), and (iv) the implausibility of any good faith use to which the domain name may be put.” In the present case, the Panel adopts this approach. Overall, it does not generally matter that the Respondent has not as yet used the Disputed Domain Name. “Passive holding” can itself amount to bad faith registration and use where the holding involves a domain name deliberately chosen because of its association with the Complainant. See Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003; Jupiters Limited v. Aaron Hall,WIPO Case No. D2000-0574, Ladbroke Group Plc v. Sonoma International LDC,WIPO Case No. D2002-0131; Westdev Limited v. Private Data,WIPO Case No. D2007-1903; Malayan Banking Berhad v. Beauty, Success & Truth International,WIPO Case No. D2008-1393; Intel Corporation v. The Pentium Group,WIPO Case No. D2009-0273; Advance Magazine Publishers Inc. and Les Publications Conde Nast S.A. v. ChinaVogue.com,WIPO Case No. D2005-0615. The Panel also notes that the Respondent has not filed a Response and hence has not availed himself of the opportunity to present any case of good faith that he might have. The Panel infers that none exists. Accordingly, and applying the principles in the above noted UDRP decisions the Panel finds that the Disputed Domain Name has been registered and is being used in bad faith and the third condition of paragraph 4(a) 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 Nick J. Gardner
Sole Panelist
Date: May 28, 2021
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