The Complainant is Société des Produits Nestlé S.A., Switzerland, represented by Studio Barbero, Italy.
The Respondent is Withheld for Privacy Purposes Privacy Service Provided by Withheld for Privacy ehf, Iceland / Hjhk Janmohamed, Nestle, Canada.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 20, 2021. On August 20, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 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 August 31, 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 September 1, 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 September 8, 2021. In accordance with the Rules, paragraph 5, the due date for Response was September 28, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 29, 2021.
The Center appointed Steven A. Maier as the sole panelist in this matter on October 19, 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 BackgroundThe Complainant is a company registered in Switzerland. It is wholly owned by, and holds the majority of trademarks belonging to, the Nestlé Group, which is an international provider of food products including baby foods, breakfast cereals, chocolate, confectionary and a range of other products.
The Complainant is the owner of numerous registrations for the trademark NESTLÉ or variations thereof, including for example:
- International trademark number 400444 for the word and device mark NESTLÉ as shown below (“the Device Mark”) registered on July 16, 1973 for goods and services in numerous classes;
- International trademark number 479337 for the word mark NESTLÉ, registered on August 12, 1983 for goods and services in numerous classes; and
- Canada trademark number 0117404 for the word mark NESTLE, registered on July 22, 1924 in International Classes 29 and 30.
The disputed domain name was registered on April 26, 2021.
The Complainant provides evidence that on May 28, 2021, the disputed domain name resolved to a website which was headed “NESTLÉ NESPRESSO JOB PORTAL” and featured a photograph of a building which prominently displayed the Device Mark. The website referred to “CURRENT CAREER OPPORUNITY” and provided a contact form for completion. Upon submitting the form, the user received a reply referring to assessment by “the management of Nestlé” and advising the user to look out for an email.
The Complainant provides further evidence that the website referred to was deactivated in early June 2021. The disputed domain name appears not to have resolved to any active website since that time.
5. Parties’ Contentions A. ComplainantThe Complainant states that Nestlé Group markets its products in over 185 countries and employs more than 270,000 individuals in 400 production centres in 80 countries worldwide. It states that it is the world’s largest food producer in terms of sales with worldwide revenues in 2020 of CHF 84.3 billion. The Complainant produces evidence by way of industry rankings and otherwise that its NESTLÉ trademark enjoys a significant degree of worldwide recognition and refers to its global advertising and promotional campaigns including via social media. The Complaint submits that in these circumstances its NESTLÉ trademark has undoubtedly achieved the status of a well-known trademark.
The Complainant states that it operates a principal website at “www.nestle.com”, together with specific websites and pages related to recruitment, at e.g. “www.nestlejobs.com” and “www.nestle.com/jobs”.
The Complainant submits that the disputed domain name is confusingly similar to its NESTLÉ trademark. It states that the disputed domain name wholly incorporates that trademark together with the term “job” and that the hyphen and the acute accent in its trademark are to be disregarded for the purpose of comparison.
The Complainant contends that the Respondent has no rights or legitimate interests in respect of the disputed domain name. It states that it has never licensed or authorized the Respondent to use its NESTLÉ trademark, that the Respondent has not been known by that name and that the Respondent is making neither bona fide commercial use nor legitimate noncommercial or fair use of the disputed domain name. Instead, the Complainant submits that the Respondent is using the disputed domain name dishonestly to impersonate the Complainant as discussed further below.
The Complainant submits that the disputed domain name was registered and has been used in bad faith. It states that, given the well-known status of its NESTLÉ trademark, which amounts to a “household name”, it is inconceivable that the Respondent was unaware of that trademark when it registered the disputed domain name. The Complainant further submits that, owing to the Respondent’s use of the disputed domain name for a website which impersonates the Complainant, it is obvious that the Respondent had the Complainant’s trademark in mind at the date of registration of the disputed domain name.
The Complainant submits that the Respondent’s website represents an impersonation of the Complainant because of its use of the disputed domain name, which is inherently misleading, and because the website contains a picture of the Complainant’s office premises and pretends to be an official website for the purpose of job applications. The Complainant points out that the website uses another of its trademarks, NESPRESSO, in addition to the NESTLÉ mark and the Device Mark. Moreover, the remaining language used on the website is designed to mislead visitors into believing it is the Complainant’s site and nowhere on the site is there any disclaimer. The Complainant further submits that no follow-up email is received by visitors who submit their personal details via the website contact form, which suggests that the true purpose of the website is simply to gather that personal information for dishonest purposes.
The Complainant submits that the Respondent has also configured mail servers related to the disputed domain name, enabling it to send emails from “[…]@nestle-job.live”. The Complainant contends that any such emails will inevitably be confused with genuine mails from the Complainant and give rise to the possibility of fraudulent activities such as “phishing”.
The Complainant states that it sent a “cease and desist” letter to the Respondent dated May 28, 2021 and that, while the Respondent did not reply to that letter, its website was disabled soon afterwards (although the mail server configurations remained). The Complainant contends that the Respondent’s failure to reply to the letter further evidences its bad faith and that its disabling of the website does not detract from its bad-faith registration and use of the disputed domain name.
The Complainant requests the transfer of the disputed domain name.
B. RespondentThe Respondent did not reply to the Complainant’s contentions.
6. Discussion and FindingsIn order to succeed in the Complaint, the Complainant is required to show that all three of the elements set out under paragraph 4(a) of the Policy are present. Those elements are 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 has been registered and is being used in bad faith.
A. Identical or Confusingly SimilarThe Complainant has demonstrated that it has registered trademark rights in the mark NESTLÉ. The disputed domain name wholly incorporates that mark, disregarding the acute accent which the Panel does not consider to be significant. The remainder of the disputed domain name comprises a hyphen and the dictionary term “job”, which do not prevent the Complainant’s trademark from being recognizable in the disputed domain name. The Panel finds therefore that the disputed domain name is confusingly similar to a trademark in which the Complainant has rights.
B. Rights or Legitimate InterestsIn the view of the Panel, the Complainant’s submissions referred to above give rise to a prima facie case that the Respondent has no rights or legitimate interests in respect of the disputed domain name. However, the Respondent has chosen not to file any formal Response in the proceeding which may have disputed the Complaints’ submissions or demonstrated any rights or legitimate interests in the disputed domain name on the Respondent’s part, whether in the circumstances set out in paragraph 4(c) of the Policy or otherwise. The Panel therefore finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name.
C. Registered and Used in Bad FaithThe Panel accepts the Complainant’s evidence that its NESTLÉ trademark is widely known internationally to denote the Complainant and its products. Furthermore, it is obvious from the Respondent’s use of the disputed domain name for the purpose of its website, as discussed further below, that it was aware of the Complainant’s trademark at the date of registration of the disputed domain name and registered it deliberately to target the Complainant’s trademark.
The Panel considers that the disputed domain name, combining the Complainant’s trademark with the dictionary term “job” and the Top-Level Domain “.live”, is inherently misleading, as inevitably suggesting to a significant number of Internet users that it has an official connection with the Complainant for the purpose of job recruitment.
Furthermore, the Panel accepts the Complainant’s evidence that the Respondent’s website constitutes an impersonation of the Complainant, prominently featuring the NESTLÉ trademark and the Device Mark and otherwise representing that it is an official or authorized recruitment site for the Complainant. The Panel also finds that the Respondent’s website collects personal information from visitors under the misapprehension that they are communicating with the Complainant and that the Respondent has configured mail servers to send emails that would inevitably be confused with those genuinely emanating from the Complainant.
In the circumstances, the only conclusion that can reasonably be reached is that the Respondent is using the disputed domain name dishonestly and, in particular, by using the disputed domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s marks as to the source, sponsorship, affiliation, or endorsement of its website or of a product or service on its website (paragraph 4(b)(iv) of the Policy).
The fact that the Respondent may have disabled its website in response to the Complainant’s “cease and desist” letter does not detract from the Panel‘s findings in this regard.
The Panel therefore finds that the disputed domain name has been registered and is being used in bad faith.
7. DecisionFor 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
Steven A. Maier
Sole Panelist
Date: November 2, 2021