ARBITRATION AND MEDIATION CENTER ADMINISTRATIVE PANEL DECISION Sealed Air Corporation (US) v. Aniket Bansode, Case No. D2022-3245 1. The Parties The Complainant is Sealed Air Corporation (US), United States of America ("United States"), represented by Nelson Mullins Riley & Scarborough, L.L.P., United States. The Respondent is Aniket Bansode, India. 2. The Domain Name and Registrar The disputed domain name is registered with Internet Domain Service BS Corp (the "Registrar"). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on August 31, 2022. On September 1, 2022, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 2, 2022, 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 September 2, 2022 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 6, 2022. 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 9, 2022. In accordance with the Rules, paragraph 5, the due date for Response was September 29, 2022. The Respondent sent an informal email to the Center on September 5, 2022 requesting information about the proceeding. page 2 The Center appointed Reyes Campello Estebaranz as the sole panelist in this matter on October 7, 2022. 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 multinational company headquartered in the United States that operates in the field of food safety and security, facility hygiene, and product protection, manufacturing various protective packaging materials, polyethylene foam and other plastic and paper packaging products. The Complainant has used the SEALED AIR trademark internationally in connection with its goods for decades (since, 1963). The Complainant serves a global customer base with a sales and distribution network reaching 114 countries or territories, and subsidiary companies in 45 countries worldwide. Per the Complaint, the Complainant has over 16,500 employees, with approximately 7,000 employees located in the United States, and 9,500 employees located in other countries. The Complainant owns a large portfolio of trademark registrations for the SEALED AIR mark in the United States and in numerous jurisdictions around the world, including: United States Trademark Registration No. 925,912, SEALED AIR, word, registered on December 21, 1971, in class 16; United States Trademark Registration No. 1,580,890, SEALED AIR, word, registered on February 6, 1990, in classes 1, 3, 7, 16, and 17; United States Trademark Registration No. 2,534,715, SEALED AIR, word, registered on January 29, 2002, in classes 10 and 17; and India Trademark Registration No. 1399455, SEALED AIR, word, registered on November 16, 2005, in classes 7, 16, and 17, (collectively the "SEALED AIR mark"). Prior decisions under the Policy have recognized the reputation of the SEALED AIR mark in its field.1 The Complainant further owns the domain name (registered on January 17, 1998), which resolves to the Complainant's official website that provides detailed information about its products. The disputed domain name was registered on June 29, 2022, and it currently resolves to a Sedo landing page that displays promotional links to third parties' sites under various sections related to packaging, and other sectors such as marketing and financial services. This site further offers for sale the disputed domain name including a link for its purchase that leads to the Sedo platform, where the disputed domain name is offered for sale for EUR 15,000. According to the evidence provided by the Complainant, the landing page associated to the disputed domain name has previously displayed promotional links to various third parties' sites under the sections "Containers and Packaging," "Packing Bags," "Generate Sale Leads," "Bubble Mailers," "Bottles and Packaging," and "Bubble Wrap", and the link to purchase the disputed domain name in the Sedo platform indicated that it was offered for sale for USD 25,000. 5. Parties' Contentions A. Complainant Key contentions of the Complaint may be summarized as follows: Due to decades-long, exclusive, and extensive use of the SEALED AIR mark globally, it is well-known, as it has been recognized and observed by previous WIPO UDRP Panels. 1 See, e.g., Sealed Air Corporation v. Ruth Stoneking, Vail Resorts Management Company, WIPO Case No. D2016-2206; and Sealed Air Corporation (US) v. Privacy service provided by Withheld for Privacy ehf / King Alpha, El Marco, WIPO Case No. D2021-0965. page 3 The disputed domain name is confusingly similar if not identical to the SEALED AIR mark. The disputed domain name is comprised of the SEALED AIR mark in its entirety with the addition of a hyphen between its words "sealed" and "air". The addition of the hyphen does not eliminate confusion. The Respondent has no rights or legitimate interests in respect of the disputed domain name. The Respondent is not authorized to use the SEALED AIR mark, and nothing indicates that it is known by the disputed domain name. The disputed domain name carries a high risk of implied affiliation that does not support any finding of rights or legitimate interests in the Respondent. The Respondent has not been using the disputed domain name in connection with a bona fide offering of goods or services or has made demonstrable preparation to do so. The Respondent's use of the disputed domain name capitalizes on the goodwill and notoriety associated with the SEALED AIR mark in order to attract Internet users to a landing page for the Respondent's financial gain in the form of click through revenue from Pay-Per-Click ("PPC") advertisements as well as attracting potential buyers of the disputed domain name. Offering to sell a domain name that is virtually identical to a highly distinctive globally known trademark is evidence of a lack of rights or legitimate interest in a domain name. The disputed domain name was registered and is being used in bad faith. Due to the globally well-known character of the SEALED AIR mark, and the almost identical nature of the disputed domain name to this mark, the Respondent knew or should have known about this trademark and nevertheless registered a domain name without any rights or legitimate interests. A simple Internet search would have alerted the Respondent of the Complainant and its trademark. There is no reasonable explanation for the Respondent registering the disputed domain name other than doing so in bad faith to capitalize on the goodwill associated with the SEALED AIR mark, as corroborates the actual use of the disputed domain name, and its offer for sale for a price exceeding its out-of-pocket registration costs. The Respondent has intentionally generated confusion or association to increase the traffic of the landing site linked to the disputed domain name for a financial gain (through PPC promotional links to third parties' sites in the operating in the Complainant's sector, and/or the transfer of the disputed domain name for valuable consideration in excess of its documented out-of-pocket costs).2 The Complainant has cited previous decisions under the Policy as well as various sections of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition, ("WIPO Overview 3.0") that it considers supportive of its position, and requests the transfer of the disputed domain name. B. Respondent The Respondent sent an informal email communication to the Center requesting information about the proceeding, but did not reply to the Complainant's contentions. 6. Discussion and Findings The Complainant has made the relevant assertions as required by the Policy and the dispute is properly within the scope of the Policy. The Panel has authority to decide the dispute examining the three elements in paragraph 4(a) of the Policy, taking into consideration all of the relevant evidence, annexed material and allegations, and performing some limited independent research under the general powers of the Panel articulated, inter alia, in paragraph 10 of the Rules. A. Identical or Confusingly Similar The Complainant indisputably has rights in the registered trademark SEALED AIR, both by virtue of its trademark registrations and as a result of continuous use of this mark over more than 60 years. 2 According to the evidence provided by the Complainant, USD 25,000. page 4 The disputed domain name incorporates the SEALED AIR mark in its entirety, adding a hyphen between the terms "sealed" and "air", which does not prevent the finding of confusing similarity. The SEALED AIR mark is recognizable in the disputed domain name, and the generic Top-Level-Domain ("gTLD") ".com" is a technical requirement, generally disregarded for the purpose of the analysis of the confusing similarity. See sections 1.7, and 1.11 of the WIPO Overview 3.0. Accordingly, this Panel finds that the disputed domain name is confusingly similar to the SEALED AIR mark, and the first element of the Policy under paragraph 4(a)(i) has been satisfied. B. Rights or Legitimate Interests Although the Complainant bears the ultimate burden of establishing all three elements of paragraph 4(a) of the Policy, UDRP panels have recognized that this could result in the often impossible task of proving a negative, requiring information that is primarily if not exclusively within the Respondent's knowledge. Thus, the consensus view is that paragraph 4(c) of the Policy shifts to the respondent the burden of production to come forward with relevant evidence of rights or legitimate interests in the disputed domain name, once the complainant has made a prima facie case that the respondent lacks rights or legitimate interests. The applicable standard of proof in UDRP cases is the "balance of probabilities" or "preponderance of the evidence", being the Panel prepared to draw certain inferences in light of the particular facts and circumstances of the case. See section 4.2, WIPO Overview 3.0. The Complainant's assertions and evidence effectively shift the burden to the Respondent of producing evidence of rights or legitimate interests in the disputed domain name, providing the circumstances of paragraph 4(c) of the Policy, without limitation, in order to rebut the Complainant's prima facie case. However, the Respondent has not replied to the Complainant's contentions, not providing any explanation and evidence of rights or legitimate interests in the disputed domain name. The Panel notes that the word "sealed" and the word "air" are included in the dictionary in English language but that their combination with a hyphen does not seem to be one that would be registered as a domain name except for reference to the Complainant. The Panel notes, however, that the disputed domain name has been used in connection to a landing page that includes PPC links promoting third parties' sites in various sectors including the Complainant's field, and offers the disputed domain name for sale including a link to the Sedo platform for its purchase. In this platform, the disputed domain name is offered for sale for a price understood to be exceeding its normal registration costs - it is noted in this respect that the Respondent has not participated to address this issue.3 Additionally, the Panel considers that the disputed domain name generates a false impression of being owned or associated to the Complainant or one of its numerous subsidiaries companies, points of sales or distribution around the globe. The Panel further considers that the Complainant has presented a case that the Respondent does not have rights or legitimate interests in the disputed domain name, as it is not commonly known by the disputed domain name, and it has not been authorized to use the Complainant's trademark. In this respect, the Panel notes that the registrant's name (unveiled by the Registrar) does not share any resemblance with the terms "sealed air" or "sealed-air". Additionally, the Panel is not aware of any trademark registration owned by the Respondent containing or consisting of the terms "sealed air" or "sealed-air." It is further noted that the Respondent requested information about this proceeding in an informal communication to the Center, but did not reply to the Complaint. Therefore, the Respondent has not provided any explanation connected to any of the circumstances included in paragraph 4(c) of the Policy or 3 USD 25,000 according to the evidence provided by the Complainant, and EUR 15,000, at the time of drafting this decision page 5 any other circumstance that may be considered as rights or legitimate interests in the disputed domain name. All the above-mentioned circumstances lead the Panel to conclude that the Respondent has not produced evidence to rebut the Complainant's prima facie case, and all these facts and circumstances point to consider that the Respondent lacks of any rights or legitimate interests in the disputed domain name. Therefore, the second element of the Policy under paragraph 4(a)(ii) has been established. C. Registered and Used in Bad Faith The Policy, paragraph 4(a)(iii), requires that the Complainant establish that the disputed domain name has been registered and is being used in bad faith. The applicable standard of proof is, likewise, the "balance of probabilities" or "preponderance of the evidence". The Panel considers that all cumulative circumstances of this case point to bad faith registration and use of the disputed domain name: (i) the SEALED AIR mark is reputed in its field;4 (ii) the SEALED AIR mark has been extensively used over more than 60 years and in the Internet, so that any search of the terms "sealed air" over the Internet would reveal the Complainant's Prior Rights; (iii) the SEALED AIR mark is internationally used, including in India, where the Respondent is located according to the Registrar verification;5 (iv) the disputed domain name incorporates the SEALED AIR mark in its entirety adding a hyphen between its terms, generating confusion or creating the impression that the disputed domain name refers to an official site of the Complainant, its subsidiaries or its points for sales or distribution; (v) according to the evidence provided by the Complainant, the disputed domain name has been and is associated to a landing page that includes PPC links to third parties' sites in the Complainant's sector, and offers for sale the disputed domain name for a price notably exceeding its out-of-pocket registration costs; (vi) the Respondent has not offered any explanation of any rights or legitimate interests in the disputed domain name, and has not come forward to deny the Complainant's assertions of bad faith, choosing not to reply to the Complaint; and (vii) the Respondent used a privacy services for the registration of the disputed domain name; and (viii) the Respondent has apparently been involved, as a losing respondent, in prior UDRP proceedings. In this respect, the Panel notes that the Respondent has been involved in two prior cases under the Policy.6 Therefore, on the balance of probabilities, taking into consideration all cumulative circumstances of this case, the Panel considers that the disputed domain name was registered targeting the Complainant's trademark in bad faith, seeking to mislead Internet users to believe that there is a connection between the disputed domain name and the Complainant, its trademarks and/or its subsidiaries, to increase the traffic of the landing page associated to the disputed domain name for a commercial gain (in the form of click through 4 As it has been recognized by considered in various prior decisions under the Policy. See footnote number 1, supra. 5 The Panel, under its general powers, has consulted the Complainant's websites at "www.sealedair.com" and at "www.sealedair.in", which corroborates the use of the Complainant's trademark in India. 6 Koninklijke Douwe Egberts B.V. v. Aniket Bansode, Vanmala, WIPO Case No. D2021-1692; and Regeneron Pharmaceuticals, Inc. v. Domain Admin, Whois Privacy Corp. / Aniket Bansode, WIPO Case No. D2019-0429. page 6 revenue from PPC promotional links, and attracting potential buyers of the disputed domain name), which constitutes bad faith. The Panel further finds that the circumstances of this case show, on a balance of probabilities, the Respondent acquired the disputed domain name primarily for the purpose of selling it to the Complainant or to its competitors for valuable consideration in excess of its documented out-of-pocket costs of registration, within the meaning of paragraph 4 (b)(i) of the Policy All of the above-mentioned circumstances lead the Panel to conclude that the disputed domain name was registered and is being used in bad faith. Accordingly, the Panel concludes that the Complainant has met its burden of establishing that the Respondent registered and is using the disputed domain name in bad faith under the third element of the Policy. 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, be transferred to the Complainant. /Reyes Campello Estebaranz/ Reyes Campello Estebaranz Sole Panelist Date: October 21, 2022
Full & Egal Universal Law Academy