The Complainant is Tetra Laval Holdings & Finance S.A., Switzerland, represented by Aera A/S, Denmark.
The Respondent is Guy Fawkes, United States of America (“United States”).
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 13, 2021. On October 14, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 15, 2021, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
The Center verified that 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 the Respondent of the Complaint, and the proceedings commenced on October 19, 2021. In accordance with the Rules, paragraph 5, the due date for Response was November 8, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 9, 2021.
The Center appointed Alistair Payne as the sole panelist in this matter on November 12, 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 Swiss corporation and is part of the Tetra Laval Group. The Tetra Laval Group consists of three independent industry groups; Tetra Pak, DeLaval, and Sidel Group. The Tetra Pak Group is a multinational food processing and packaging company founded in 1947 in Sweden. It employs more than 25,000 people and is operative in more than 160 countries worldwide including the United States.
The Complainant owns the TETRA PAK trade mark, which is registered in more than 160 countries throughout the world with more than 1,500 registrations, including in particular United States trade mark registration No. 0586480 for TETRA PAK registered on March 9, 1954. The Complainant owns more than 300 domain name registrations throughout the world containing the TETRA PAK mark distributed among generic Top Level Domains and country Top Level Domains, including tetrapakonline.com.
The disputed domain name was registered on September 6, 2021, and does not resolve to an active website.
5. Parties’ Contentions A. ComplainantThe Complainant submits that it owns registered trade mark rights as set out above. It says that the disputed domain name wholly incorporates its TETRAPAK mark but is a deliberate misspelling of it by the insertion of the letter “e” in the middle of the disputed domain name. The Complainant submits that this amounts to a classic case of typosquatting that is intended to confuse email recipients and to misleadingly give an impression of connection with the Complainant.
The Complainant asserts that MX-records are set up for the disputed domain name and that the Respondent is using the disputed domain name in connection with a phishing activity and the Complainant has provided evidence of an email sent to one of its customers using an email address from the disputed domain name as if being sent by one of the Complainant’s employees. The Complainant says that considering the brand awareness of the trade mark TETRA PAK worldwide, an Internet user or an email recipient would most probably assume a connection with, or endorsement from, the Complainant and its business when seeking information on a website with the domain name tetraepak.com or upon receiving an email with the address “[…]@tetraepak.com”.
The Complainant further submits that, based on the Complainant’s continuous and long prior use of its trade mark and trade name TETRA PAK, the Respondent has no rights to or legitimate interest in the disputed domain name. It says that the Respondent is not affiliated or related to the Complainant in any way and has not been licensed or otherwise authorised to use the TETRA PAK mark in connection with a website, email communication or for any other purpose. It says that the Respondent is not using the disputed domain name in connection with any bona fide offering of goods or services, is not generally known by the disputed domain name and has not acquired any trade mark or service mark rights in that name or mark.
It is apparent, says the Complainant, from the composition of the disputed domain name, that the Respondent must have known of the Complainant’s trade mark TETRA PAK and its business. That being so, it says that the Respondent could not have chosen or subsequently used the word “tetraepak” for any reason other than to trade-off the goodwill and reputation of the Complainant’s trade mark or otherwise create a false association, sponsorship or endorsement with the Complainant. The Complainant asserts that the registration of a domain name that is confusingly similar to a registered trade mark by a person with no connection to that trade mark amounts to “opportunistic bad faith”. That, it says, is, in itself evidence of bad faith, both generally and specifically within the meaning of paragraph 4 (b) (iii) and (iv).
The Complainant submits that in circumstances that the Respondent must have been aware of its TETRAPAK mark when it registered the disputed domain name and that it subsequently used it for the purposes of phishing to obtain information and money, the Respondent’s conduct amounts to registration and use of the disputed domain name in bad faith.
B. RespondentThe Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings A. Identical or Confusingly SimilarThe Complainant has demonstrated that it owns registered trade mark rights for its TETRAPAK trade mark, in particular, United States trade mark registration 0586480 for TETRA PAK registered in 1954. The disputed domain name wholly contains the Complainant’s trade mark with the addition of an “e” in between “tetra” and “pak”. The addition of the “e” does not distinguish the disputed domain name and it is apparent that this is a deliberate misspelling of the highly distinctive TETRA PAK trade mark that amounts to typosquatting. The Panel finds that the disputed domain name is therefore confusingly similar to the Complainant’s TETRAPAK mark and that the Complaint succeeds under this element of the Policy.
B. Rights or Legitimate InterestsThe Complainant has submitted that, based on the Complainant’s continuous and long prior use of its trade mark and trade name TETRA PAK, the Respondent has no rights or legitimate interest in the disputed domain name. It has confirmed that the Respondent is not affiliated or related to the Complainant in any way and that it has not licensed or otherwise authorised the Respondent to use the TETRA PAK mark in connection with a website, email communication or for any other purpose. The Complainant has said further that the Respondent is not using the disputed domain name in connection with any bona fide offering of goods or services, is not generally known by the disputed domain name and has not acquired any trade mark or service mark rights in that name or mark.
Based on the evidence submitted by the Complainant it appears that the Respondent has used the disputed domain name as part of a phishing scheme. It looks as if MX-records were set up for the disputed domain name and then it was used by the Respondent to masquerade as an employee of the Complainant by sending an email to one of the Complainant’s customers using an email address from the disputed domain name. While it is unclear to the Panel whether the Respondent was seeking to obtain information or money from the customer, it is apparent that this was a “phishing” mission which is neither bona fide nor legitimate use of the disputed domain name.
The Panel finds that the Complainant has made out a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name, which has not been explained or rebutted by the Respondent. In these circumstances and considering the Respondent’s use of the disputed domain name in an attempted illegitimate “phishing” exercise the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name and that the Complaint succeeds under this element of the Policy.
C. Registered and Used in Bad FaithThe disputed domain name was reportedly registered by the United States-based Respondent on September 6, 2021, many decades after the Complainant registered its TETRAPAK mark in the United States. The TETRAPAK mark is highly distinctive and has been used widely by the Complainant in many countries worldwide including the United States. It could not have been a mere coincidence that the Respondent chose in 2021 to register the disputed domain name that differed only by the addition of the letter “e” from the Complainant’s highly distinctive and reputed mark. Indeed, its use of the disputed domain name in the phishing scheme described below only confirms the view that the Respondent was well aware of the TETRAPAK mark and business when it registered the disputed domain name.
There is unchallenged evidence that the Respondent in this case has used the disputed domain name to masquerade as the Complainant for the purposes of an email based phishing exercise as further described under Part B above. Whether the purpose of this exercise was to obtain financial gain for himself or information from the Complainant’s customers is not clear, but in any event, the Panel finds that this conduct was illegitimate and amounts to a blatant use of the disputed domain name in bad faith under this element of the Policy. Accordingly, the Panel finds that the Respondent has both registered and used the disputed domain name in bad faith and the Complaint, also succeeds under this element of the Policy.
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
Alistair Payne
Sole Panelist
Date: November 27, 2021