The Complainant is Chocoladefabriken Lindt & Sprüngli AG of Kilchberg, Switzerland, represented by Sandel, Løje & Partnere, Denmark.
The Respondent is Deborah R. Heacock of Seattle, Washington, United States of America (“U.S.”). 2. The Domain Name and Registrar
The disputed domain name is registered with Dynadot, LLC (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 8, 2013. On August 8, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 8, 2013, 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, approved by the doMEn d.o.o (“doMEn”) on April 30, 2008, the Rules for Uniform Domain Name Dispute Resolution Policy for .ME, approved by doMEn on October 1, 2012 (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on August 16, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was September 5, 2013. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 6, 2013.
The Center appointed Kiyoshi Tsuru as the sole panelist in this matter on September 18, 2013. 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, a manufacturer of premium quality chocolate, is the owner of many trademark registrations around the world, particularly of the following: Registration No. Trademark Country International Class Registration Date
87306
LINDT
U.S.
30
July 9, 1912
556669
LINDT (and design)
U.S.
30
March 25, 1952
2031928
LINDT (and design)
U.S.
30
January 21, 1997
3104130
LINDT (and design)
U.S.
35 and 43
June 13, 2006
839883
LINDT (and design)
International Registration
(Algeria, Armenia, Bahrain, China, Egypt, Iceland, Islamic Republic of Iran, Japan, Kenya, Liechtestein, Mozambique, Namibia, Romania, Singapore, Syrian Arab Repulic, Turkey, U.S., Viet Nam, Zambia)
35 and 45
July 22, 2004
349150
LINDT
Switzerland
30 and 32
October 29, 1986
523408
LINDT
Switzerland
35 and 43
July 2, 2004
556274
LINDT
Switzerland
14, 16, 21, 25 and 41
March 9, 2007
The Complainant also owns some domain name registrations, particularly the following: Domain Name Registration Date
December 16, 1997
November 19, 2001
August 1, 2001
February 28, 2000
November 16, 2001
March 31, 2005
October 16, 2000
March 18, 2003
October 17, 1996
July 11, 1997
November 11, 1997
The disputed domain name was registered by the Respondent on February 20, 2013. 5. Parties’ Contentions A. Complainant
The Complainant argues the following: i. Confusing Similarity
That the Complainant uses the trademark LINDT in the marketing and sales of premium quality chocolates, which trademark also forms the dominant part of the Complainant’s name and which identifies all of the Complainant’s products;
That the Complainant is experiencing growth in the U.S. market, where it has developed a leading market position within the premium chocolate market segment;
That 27.8% of the Complainant’s global sales concerns the North American market, the place where the Respondent is located;
That the Complainant owns thousands of trademark registrations around the world consisting of, or containing the term “Lindt”;
That many of the Complainant’s trademarks were registered prior to the registration of the disputed domain name;
That the domain names owned by the Complainant contain the term “Lindt” and are used to facilitate the Complainant’s global promotion and sale of products under the trademark LINDT; and
That the Complainant’s well-known trademark is incorporated, in its entirety, in the disputed domain name. ii. Rights or Legitimate Interests
That the Respondent is not authorized by the Complainant to use the Complainant’s trademark LINDT;
That it is unlikely that the Respondent owns any rights over the disputed domain name;
That the Respondent is not using the disputed domain name in connection with a bona fide offering of goods and services or other legitimate use;
That the disputed domain name is used as a traditional pay-per-click landing page with advertisement links, that include chocolate advertising, and that there is an express advertisement of the disputed domain name being for sale with an invitation for the visitors to make an offer to buy it;
That the Respondent is using the disputed domain name to divert consumers who are searching for the Complainant’s products under trademark LINDT, and to tarnish said trademark; and
That, since it is impossible for the Complainant to prove a negative, and taking into account that the Complainant has shown prima facie that the Respondent has no rights or legitimate interests in the disputed domain name, the Complainant should be held to fulfill the second element of the Policy requirements. iii. Bad Faith Registration and Use
That there is virtually no commercial use which could be made of the disputed domain name, which would not infringe the legal rights of the Complainant and be misleading and deceptive upon the public;
That the Respondent is currently using the disputed domain name for a parking-site/landing page containing advertisement links within the field of chocolate and also an advertisement of the disputed domain name for sale; and
That from a general point of view it is also noted that a registrant of a non-generic domain name used for a parking site would typically have researched and be aware of the chances that the non-generic domain name chosen will generate many visits/clicks, which implies that the Respondent knew of the existence of the corresponding trademark and the use thereof by the right holder. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
In accordance with paragraph 4(a) of the Policy, the Complainant is requested to prove that each of the three following elements is satisfied:
(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.
As the Respondent has failed to submit a response to the Complainant’s contentions, the Panel may choose to accept as true all of the reasonable allegations of the Complaint (see Encyclopaedia Britannica, Inc. v. null John Zuccarini, Country Walk,WIPO Case No. D2002-0487). A. Identical or Confusingly Similar
The Complainant is the owner of several trademark registrations for LINDT.
The Panel finds that the Complainant’s trademark LINDT is entirely comprised in the disputed domain name .
It is the Panel’s view that the addition of the country-code Top-Level Domain (ccTLD) “.me” is irrelevant for the purposes of this analysis, as it does not add any distinctiveness to the disputed domain name (see mutatis mutandis, Antena 3 de Televisión S.A. c/ D. Javier García Quintas,WIPO Case No. D2002-0537; CBS Broadcasting Inc. v. Worldwide Webs, Inc.,WIPO Case No. D2000-0834; Ahmanson Land Company v. Vince Curtis, WIPO Case No. D2000-0859).
The Complainant has proven a worldwide presence of the trademark LINDT, and a widespread recognition of said trademark in Switzerland and Europe, where the Complainant is domiciled, and the U.S., where the Respondent declared to have her address.
Therefore, the Panel finds that the disputed domain name is identical to the Complainant’s trademark. The first requirement of the Policy has been fulfilled. B. Rights or Legitimate Interests
Policy, paragraph 4(c) sets forth, in particular but without limitation, the following examples as circumstances where a respondent may have rights or legitimate interests in a domain name:
(i) before any notice to you of the dispute, your 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) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are 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.
The Respondent has not submitted any evidence showing actual bona fide use, or preparations to use the disputed domain name with a bona fide offering of services, nor has the Respondent demonstrated that she has been commonly known as , or that she is making a legitimate noncommercial or fair use of the disputed domain name in order to counter the Complainant’s prima facie case.
In fact, the evidence filed by the Complainant shows that the disputed domain name has been parked under a pay-per-click program. The disputed domain name resolves to a website that features links to different chocolate products, and apparently one of them related to the Complainant itself. Said activities constitute commercial, bad faith conduct, with the intention to misleadingly divert consumers for commercial gain. (See Express Scripts, Inc. v. Windgather Investments Ltd. / Mr. Cartwright,WIPO Case No. D2007-0267; Asian World of Martial Arts Inc. v. Texas International Property Associates,WIPO Case No. D2007-1415; Legacy Health System v. Nijat Hassanov,WIPO Case No. D2008-1708; Mpire Corporation v. Michael Frey,WIPO Case No. D2009-0258; Compart AG v. C / Vertical Axis, Inc.,WIPO Case No. D2009-0462; Donald J. Trump v. Mediaking LLC d/b/a Mediaking Corporation and Aaftek Domain Corp.,WIPO Case No. D2010-1404; Paris Hilton v. Deepak Kumar,WIPO Case No. D2010-1364; Lardi Ltd v. Belize Domain WHOIS Service Lt,WIPO Case No. D2010-1437; Jupiters Limited v. Aaron Hall,WIPO Case No. D2000-0574; Croatia Airlines d.d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455).
The Respondent has not submitted any evidence showing that she has been commonly known as .
Therefore, this Panel finds no rights or legitimate interests on the side of the Respondent. The second requirement of the Policy has been fulfilled. C. Registered and Used in Bad Faith
According to paragraph 4(b) of the Policy, the following circumstances, in particular but without limitation, shall be evidence of registration and use in bad faith:
(i) circumstances indicating that you have registered or you have 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 your documented out-of-pocket costs directly related to the domain name; or
(ii) you have 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 you have engaged in a pattern of such conduct; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your website or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your website or location.
The disputed domain name has resolved to a typical pay-per-click page, which is likely to cause confusion as to the source of the products featured on it. Therefore, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to the website to which the disputed domain domain name resolves, by creating a likelihood of confusion with the Complainant’s trademark. This constitutes bad faith registration and use under paragraph 4(b)(iv) of the Policy. See e.g. Alpine Entertainment Group, Inc. v. Walter Alvarez,WIPO Case No. D2007-1082; Express Scripts, Inc. v. Windgather Investments Ltd. / Mr. Cartwright, WIPO Case No. D2007-0267; Asian World of Martial Arts Inc. v. Texas International Property Associates,WIPO Case No. D2007-1415 and Owens Corning v. NA,WIPO Case No. D2007-1143.
The Panel finds that the Respondent registered and is using the disputed domain name in bad faith. The third element of the Policy has been met. 7. Decision
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 10 of the Rules, the Panel orders that the disputed domain name be transferred to the Complainant.
Kiyoshi Tsuru
Sole Panelist
Date: October 2, 2013
Full & Egal Universal Law Academy