The Complainant is Whirlpool Properties, Inc., United States of America, represented by ALG India Law Offices, India.
The Respondent is Domain Administrator, See PrivacyGuardian.org, United States of America / Shoujun Lu, China.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 12, 2021. On November 12, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On the same day, 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 November 15, 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 November 17, 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 November 17, 2021. In accordance with the Rules, paragraph 5, the due date for Response was December 7, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 8, 2021.
The Center appointed Knud Wallberg as the sole panelist in this matter on December 27, 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 BackgroundFounded in 1911, the Complainant is presently one of the world’s largest home appliance makers. As of 2020, the Complainant had approximately USD 19 billion in annual sales, 78,000 employees, and 57 manufacturing and technology research centers throughout the world. The Complainant owns and manages a number of global brands such as WHIRLPOOL, KITCHENAID, and EVERYDROP.
The Complainant holds trademark registrations of the EVERYDROP mark in respect of various goods in more than 25 countries worldwide, including, for example, European Union trademark registration No. 015715162, registered on December 12, 2016, in classes 11 and 21, United States trademark registration No. 5,232,741, registered on June 17, 2017, in class 11, and China trademark registration No. 19596904, registered on May 28, 2017, in class 21. Complainant also owns several domain name registrations incorporating the EVERYDROP mark.
The disputed domain name was registered on July 19, 2021. The disputed domain name resolves to a website that purports to offer the Complainant´s EVERYDROP products.
5. Parties’ Contentions A. ComplainantThe Complainant asserts that the disputed domain name is confusingly similar to its EVERYDROP mark. The disputed domain name consists of the Complainant’s exact mark with the addition of the descriptive terms “filters” and “online”, which does nothing to avoid confusing similarity.
The Complainant further asserts that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Complainant has not authorized or permitted the Respondent to use its EVERYDROP mark, nor is the Respondent making any legitimate noncommercial or fair use of the disputed domain name. On the contrary, as the disputed domain name currently hosts a website wherein the Respondent appears to offer sales of products under the EVERYDROP mark. The Complainant also asserts that the Respondent is not commonly known by the disputed domain name and does not have any trademark rights in EVERYDROP, and that the Respondent is using the disputed domain name to attempt to mislead or divert consumers to its website inter alia by copying content, images, and web-layout from the Complainant’s official website.
The Complainant finally asserts that the disputed domain name was registered and is being used in bad faith. It is thus evident from the content of the website that the Respondent knew of the Complainant’s EVERYDROP mark when he registered the disputed domain name. Furthermore, the Respondent is using the disputed domain name for a website which contains not only the Complainant’s trademarks, but also various elements, including paraphrased textual elements, images, web-layout, formatting, etc. from the Complainant’s official website, whereby the Respondent is attempting to confuse consumers into believing that the website is the Complainant’s official website and/or that the Respondent is affiliated with or authorized to sell products by the Complainant, which is not the case.
B. RespondentThe Respondent did not reply to the Complainant’s contentions.
6. Discussion and FindingsAccording to paragraph 15(a) of the Rules the Panel shall decide the Complaint in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.
Paragraph 4(a) of the Policy directs that a complainant must prove each of the following:
(i) that the domain name registered by the respondent is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(ii) that the respondent has no rights or legitimate interests in respect of the domain name; and
(iii) that the domain name has been registered and is being used in bad faith.
Paragraph 4(a) of the Policy states that the burden of proving that all these elements are present lies with the Complainant. At the same time, in accordance with paragraph 14(b) of the Rules, if a party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under the Rules, or any request from the Panel, the Panel shall draw such inferences therefrom as it considers appropriate.
A. Identical or Confusingly SimilarThe disputed domain name comprises the Complainant’s EVERYDROP trademark in its entirety together with the terms “filters” and “online”. The addition of such terms does not prevent a finding of confusing similarity. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), sections 1.7 and 1.8.
The gTLD “.com” is a standard registration requirement and as such is typically disregarded under the first element confusing similarity test. See section 1.11.1 of WIPO Overview 3.0.
The Panel therefore finds that the conditions in paragraph 4(a)(i) of the Policy are fulfilled in relation to the disputed domain name.
B. Rights or Legitimate InterestsIt is clear from the facts of the case that the Complainant has not licensed or otherwise permitted the Respondent to use its trademark and given the circumstances of this case, the Panel finds that the Complainant has established a prima facie case that the Respondent has no rights to or legitimate interests in the disputed domain name.
The Respondent has not produced, and there is no evidence of the types of circumstances set out in paragraph 4(c) of the Policy that might give rise to rights or legitimate interests in the disputed domain name on the part of the Respondent in these proceedings. The Respondent is using the confusingly similar disputed domain name to direct Internet users to its website where it displays the Complainant’s logo as well other elements from the Complainant’s website and on which the Respondent purports to offer the Complainant´s EVERYDROP products. . Not only does the construction of the disputed domain name itself risk an implied affiliation to the Complainant, but the content further reinforces said association when none exists. Rather than provide any disclaimer as to the relationship, or lack thereof, to the Complainant, the website at the disputed domain name includes a copyright notice, citing the Complainant, underscoring the intent of the Respondent to indicate an association or endorsement by the Complainant. Accordingly, such use is not a bona fide offering of goods or services, nor does such use constitute fair use.
The Panel there finds that the conditions in paragraph 4(a)(ii) of the Policy are fulfilled in relation to the disputed domain name.
C. Registered and Used in Bad FaithParagraph 4(a)(iii) of the Policy requires the Complainant to prove both registration and use of the disputed domain name in bad faith. Paragraph 4(b) of the Policy provides examples of circumstances which shall be evidence of registration and use in bad faith:
(i) circumstances indicating that the holder has registered or has acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the holder’s documented out-of-pocket costs directly related to the domain name; or
(ii) the holder has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the holder has engaged in a pattern of such conduct; or
(iii) the holder has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the holder has intentionally attempted to attract, for commercial gain, Internet users to the holder’s website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the holder’s website or location or of a product or service on the holder’s website or location.
Accordingly, for the Complainant to succeed, the Panel must be satisfied that the disputed domain name has been registered and is being used in bad faith.
Given the circumstances of the case, in particular the widespread protection of the Complainant’s trademark EVERYDROP and its exact replication in both the construction of the disputed domain name and also on the website at the disputed domain name, it is inconceivable to the Panel that the Respondent registered the disputed domain name without prior knowledge of the Complainant and the Complainant’s marks.
The Panel therefore finds that the disputed domain name was registered in bad faith.
The disputed domain name is used for a website that purports to offer the Complainant’s products and the website even contains a reproduction of the Complainant’s registered logo as well as other content that is copied form the Complainant’s official website. The Panel therefore finds that the Respondent intentionally attempts to attract, for commercial gain, Internet users to the Respondent’s website by creating a likelihood of confusion with the Complainant’s marks as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website (see WIPO Overview 3.0, section 3.1.4).
The Respondent’s failure to participate in these proceedings and use of a privacy service to hide its identity are further indicia of the Respondent’s bad faith.
The Panel there finds that the conditions in paragraph 4(a)(iii) of the Policy are fulfilled in relation to the disputed domain name.
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,
Knud Wallberg
Sole Panelist
Date: January 10, 2022