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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Unilever Supply Chain, Inc. v. Kal Kuchora

Case No. D2005-1347

 

1. The Parties

The Complainant is Unilever Supply Chain, Inc., of Connecticut, United States of America, represented by Duane Morris LLP, United States of America.

The Respondent is Kal Kuchora, of Rawalpindi, Pakistan.

 

2. The Domain Name and Registrar

The disputed domain name <wwwslimfast.com> is registered with Intercosmos Media Group d/b/a directNIC.com.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 27, 2005. On December 28, 2005, the Center transmitted by email to Intercosmos Media Group d/b/a directNIC.com a request for registrar verification in connection with the domain name at issue. On December 28, 2005, Intercosmos Media Group d/b/a directNIC.com transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on January 6, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was January 26, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 27, 2006.

The Center appointed Adam Taylor as the Sole Panelist in this matter on February 1, 2006. 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 (including its predecessors) is a manufacturer, distributor and seller of meal replacement and weight management products. The Complainant has sold its line of meal replacement and weight management products under the SLIM-FAST trademarks continuously in the United States since at least 1977. The Complainant’s Slim-Fast products are also sold in various other countries including Brazil, Canada, France, Italy, Germany, Mexico, the Netherlands and the United Kingdom.

Since 1977 the Complainant’s sales in the United States have exceeded $5 billion. It has spent over $1 billion advertising and promoting the SLIM-FAST brand in the United States and other countries in a wide variety of media including newspapers, magazines, television, radio, the internet, billboards, banner ads, store displays, publications, sponsored events and tradeshows.

The Complainant owns worldwide trademark registrations for SLIM-FAST for a variety of meal replacement and weight management products including Canadian trademark No. 233184 for SLIM-FAST dated May 18, 1979, in classes 5 and 31.

The Complainant operates a number of websites including “www.slim-fast.com” which advertise and promote Slim-Fast products and provide nutritional and dietary information and support to consumers of Slim-Fast products.

On November 6, 2002, the Respondent registered the disputed domain.

In the succeeding months, the Complainant’s counsel made several attempts to contact the Respondent by letter and emails to the addresses shown in the Whois database but the letters were returned as undeliverable and the Respondent did not respond to any of the emails.

As of December 28, 2005, there was a website at the disputed domain name comprising a directory of links. Approximately half of these links related to weight loss and weight loss products and some of these included the Complainant’s trademark. By clicking on the hyperlinks containing Complainant’s SLIM-FAST trademarks, users were taken to another page featuring various affiliate links for both the Complainant’s weight management products as well as those of its competitors. The domain name appeared prominently at the top of the website.

 

5. Parties’ Contentions

A. Complainant

Identical or Confusingly Similar

The SLIM-FAST trademarks are extraordinarily well known and their fame existed long before the registration of the disputed domain name. The Complainant has strong rights in its SLIM-FAST trademarks.

The disputed domain name incorporates the SLIM-FAST trademark in its entirety and combines it with the prefix “www.” It is therefore confusingly similar to Complainant’s SLIM-FAST trademark. The addition of “www”, a well known acronym for “world wide web” does not have any impact on the overall commercial impression created by the dominant portion of the domain name and is not sufficient to distinguish the disputed domain from Complainant’s trademarks. Consumers are likely to believe that the disputed domain name is related to or associated with the Complainant or its products.

Moreover, the Respondent’s registration of the disputed domain name was designed to take advantage of a common typographical error wherein the internet user omits to add the period between domain name and the “www” field. Many prior panel decisions have considered that such domain names are substantially similar to the relevant trademark.

Rights or Legitimate Interests

The Respondent has no legitimate rights or interest in the disputed domain name. As the Complainant (together with its predecessors) has been using the SLIM-FAST trademark for over 28 years and has built a significant amount of fame for its SLIM-FAST trademark throughout the world, there can be no conceivable bona fide or legitimate use of the disputed domain name by Respondent.

The Complainant has never given any license, permission or authorization to Respondent to own or use the disputed domain name.

The Respondent is not using the domain name in connection with a bona fide offering of goods or services nor is Respondent making legitimate commercial, noncommercial or fair use of the domain name.

Where, as here, the SLIM-FAST trademark is well-known and distinctive, it is not reasonably possible for the Respondent to demonstrate any legitimate interest in a domain name consisting of the SLIM-FAST trademark particularly where coupled with the common prefix “www.”

The Respondent has no legitimate website attached to the name. The Respondent intentionally registered the disputed domain name to create consumer confusion by luring unsuspecting internet users to his website and exploiting the Complainant’s extensive goodwill in its registered SLIM-FAST trademarks for his own financial benefit. Taken together, these circumstances sufficiently show that Respondent has no rights or legitimate interest in the disputed domain name.

Registered and Used in Bad Faith

The Respondent registered and used the disputed domain name in bad faith.

The Respondent’s bad faith in registering the disputed domain name is evidenced by Respondent’s actual knowledge of the Complainant’s SLIM-FAST trademark and the products and services marketed and sold thereunder at the time of registration. Such knowledge can be inferred from: (1) the Respondent’s inclusion of hyperlinks to websites marketing and selling Complainant’s Slim-Fast products and (2) the fact that the Respondent’s domain name consists of Complainant’s SLIM-FAST trademark with the addition of the prefix “www”.

The Respondent’s registration of the disputed domain name itself constitutes a sufficient basis for a finding of bad faith. The registration of domain names consisting of well-known trademarks in combination with the prefix “www” has long been recognized as a form of typosquatting.

The Respondent’s bad faith is evidenced by its failure to use the disputed domain name to sell or provide any goods or services.

The Respondent’s bad faith is further demonstrated by the fact that the disputed domain name domain name incorporates and is confusingly similar to the SLIM-FAST trademark because the ultimate effect of any use of the disputed domain name will be to cause confusion with the trademark.

In light of the fame of the SLIM-FAST trademark, the Respondent clearly knew or should have known of Complainant’s SLIM-FAST trademarks when it registered the disputed domain name.

The fact that the Respondent proceeded with the registration of a domain name that incorporates the SLIM-FAST trademark in its entirety supports a finding of registration and use in bad faith.

The SLIM-FAST trademark and, by extension, the disputed domain name, are so obviously connected with the Complainant that the use of this domain name by someone unconnected with the Complainant or its goods or services suggests “opportunistic bad faith.”

The conduct of the Respondent in registering the disputed domain name, and in failing to provide any good faith or legitimate reason for taking the domain name, suggests that there can be no dispute but that Respondent registered the disputed domain name in bad faith.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

 

6. Discussion and Findings

A. Identical or Confusingly Similar

The Complainant has established registered and unregistered trademark rights in the term SLIM-FAST.

Apart from the domain suffix, the disputed domain name differs from the trademark only by addition of the prefix “www” (the generic abbreviation for “world wide web”) and removal of the hyphen. These differences are insufficient to distinguish the disputed domain name from the trademark and there is still a clear likelihood of confusion between the two.

The Panel concludes that the disputed domain name is confusingly similar to a trademark in which the Complainant has rights.

B. Rights or Legitimate Interests

The Complainant must establish at least a prima facie case under this heading and, if that is made out, the evidential onus shifts to the Respondent to rebut the presumption of absence of rights or legitimate interests thereby created. See, e.g., Atlas Copco Aktiebolag v. Accurate Air Engineering, Inc., WIPO Case No. D2003-0070.

The Complainant has not licensed or otherwise authorized the Respondent to use its trademark.

As to paragraph 4(c)(i) of the Policy, the Panel has concluded below that the Respondent has used the disputed domain name to intentionally attempt to attract, confuse and profit from Internet users seeking the Complainant. Such use of the Domain Name could not be said to be bona fide.

There is no evidence that paragraphs 4(c)(ii) or (iii) of the Policy apply.

The Complainant has established a prima facie case of lack of rights and legitimate interests and there is no rebuttal by the Respondent.

The Panel concludes that the Respondent has no rights or legitimate interests in the disputed domain name.

C. Registered and Used in Bad Faith

It is difficult to conceive of any genuine reason why the Respondent would wish to register a domain name consisting of the Complainant’s trademark prefixed by the term “www”.

It is clear from the disputed domain name itself, and from the use of the Complainant’s trademark on the Respondent’s site, that the Respondent registered and used the disputed domain name with knowledge of the Complainant’s trademark.

The Panel’s view is that the disputed domain name was intended to attract internet users who omit the dot after “www” when typing the address of the Complainant’s website into their browsers. This is the practice known as “typo-squatting”. Such users are diverted to a website with many affiliate links relating to the kind of products sold by the Complainant including links referring to the Complainant’s trademark and links to competitors of the Complainant. Furthermore, the site at the disputed domain name is prominently branded with the disputed domain name itself, thereby compounding the likelihood of confusion.

The Respondent has not come forward to deny that the Complainant’s assertions of bad faith let alone offer any explanation for its registration and use of the disputed domain name.

The Panel concludes from the foregoing that the Respondent has registered and used the disputed domain name in bad faith in accordance with paragraph 4(b)(iv) of the Policy. The Respondent has intentionally attempted to attract Internet users to its website for commercial gain by creating a likelihood of confusion with the Complainant’s trademark.

 

7. Decision

For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <wwwslimfast.com> be transferred to the Complainant.


Adam Taylor
Sole Panelist

Dated: February 15, 2006

 

Источник информации: https://internet-law.ru/intlaw/udrp/2005/d2005-1347.html

 

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