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and Mediation Center
ADMINISTRATIVE PANEL DECISION
Playtex Products Inc. v. Wan-Fu China Ltd.
Case No. D2007-0586
1. The Parties
Complainant is Playtex Products Inc., Westport, Connecticut, United States of America, represented by Carter, Ledyard & Milburn, United States of America.
Respondent is Wan-Fu China Ltd., Nassau, Bahamas.
2. The Domain Name and Registrar
The disputed domain name <playtexgentleglide.com> (hereinafter, “Disputed Domain Name” is registered with BelgiumDomains, LLC.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 17, 2007. On April 18, 2007, the Center transmitted by email to BelgiumDomains, LLC a request for registrar verification in connection with the Disputed Domain Name. On April 19, 2007, BelgiumDomains, LLC transmitted by email to the Center its verification response confirming that 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”), 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 Respondent of the Complaint, and the proceedings commenced on April 27, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was May 17, 2007. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on May 21, 2007.
The Center appointed Mark Ming-Jen Yang as the sole panelist in this matter on May 31, 2007. 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
Complainant is the owner of the trademark GENTLE GLIDE and United States trademark Registration Nos. 2,084,168 and 1,010,170, based on use of that trademark in the United States since the 1970s. Complainant is also the owner of the trademark PLAYTEX and United States trademark Registration No. 372,3671, based on use of that trademark in the United States since the 1930s.
Particulars of Complainant’s use of the Trademark in the marketplace are described in “Discussion and Findings - Identical or Confusingly Similar”, Section 6A below.
In 20062, Respondent registered the Disputed Domain Name.
5. Parties’ Contentions
Complainant contends that the Disputed Domain Name is confusingly similar with the Trademark in which it has rights, that Respondent has no rights or legitimate interests in the Disputed Domain Name and that Respondent registered and uses the Disputed Domain Name in bad faith.
Respondent did not reply to Complainant’s contentions and is in default.
6. Discussion and Findings
One requirement of fundamental due process is that a respondent has notice of proceedings that may substantially affect its rights. The Policy, Rules and Supplemental Rules establish procedures intended to assure that a respondent is given adequate notice of proceedings commenced against it, and a reasonable opportunity to respond (see, e.g., Rules, paragraph 2(a)).
In this case, the Panel is satisfied that the Center took all steps reasonably necessary to notify Respondent of the filing of the Complaint and initiation of these proceedings, and that the failure of Respondent to furnish a Response to the Complaint is not due to any omission by the Center. There is sufficient evidence in the case file for the Panel to conclude that the Center discharged its obligations under Rules, paragraph 2(a) (see Procedural History, supra).
In case of default, under paragraph 14(a) of the Rules, “the Panel shall proceed to a decision on the complaint”, and under paragraph 14(b) of the Rules, “the Panel shall draw such inferences [from the default] as it considers appropriate”. Furthermore, paragraph 15(a) of the Rules provides that a “Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems appropriate”. Since Respondent has not submitted any evidence, the Panel must render its decision on the basis of the uncontroverted evidence supplied by Complainant.
In accordance with paragraph 4(a) of the Policy, to succeed in this UDRP proceeding, Complainant must meet three requirements that will be considered in turn below.
A. Identical or Confusingly Similar
Complainant contends (and the Panel accepts as uncontroverted) the following:
“The PLAYTEX mark is famous in the pet product, baby product, diaper disposal, feminine care and other disposal product markets. Since 1932, Complainant, or its predecessors in interest, has been a leading manufacturer and distributor of a diversified portfolio of well-recognized, market-leading personal care and consumer products under the PLAYTEX mark. PLAYTEX markets include Europe, Asia, the subcontinent, the United Kingdom, the United States, Canada, Australia and New Zealand…. For the past several years, Complainant’s annual worldwide sales in connection with the PLAYTEX Name have averaged approximately US$636 million dollars….Playtex Products, Inc. globally markets the PLAYTEX mark, with an aggregate annual marketing expenditure of US$97 million in 2006….
The GENTLE GLIDE mark is famous in the feminine care market. Complainant has been using the GENTLE GLIDE mark since at least as early as 1973 and has registrations in the Mark in the United States, Aruba, Barbados, Bolivia, Brazil, Canada, Chile, China, Columbia, Costa Rica, Denmark, the Dominican Republic, El Salvador, Finland, France, Greece, Guatemala, Honduras, Indonesia, Ireland, Jamaica, Japan, Mexico, New Zealand, Nicaragua, Panama, Paraguay, Puerto Rico, St. Kitts & Nevis, St. Lucia, Taiwan, the United Kingdom, Uruguay, and Venezuela and applications for registrations in the Mark pending in the European Union, India and Malaysia…. Complainant’s U.S. dollar market share in the feminine care market has remained relatively stable since the fourth quarter of 2003 at approximately 25% and its net sales in the Feminine Care segment aggregated to $229.7 million in 2005.”
Complainant contends (and the Panel accepts as uncontroverted) that the Disputed Domain Name is confusingly similar to Complainant’s PLAYTEX trademark and GENTLE GLIDE trademark. Specifically, the Disputed Domain Name is simply the concatenation of those two trademarks.
Thus the Panel accepts Complainant’s contentions that it has rights in the PLAYTEX trademark and GENTLE GLIDE trademark and that the Disputed Domain Name is confusingly similar to those two trademarks, and so concludes that the first requirement of the Policy is met.
B. Rights or Legitimate Interests
Complainant contends (and the Panel accepts as uncontroverted) that Respondent has no rights or legitimate interests in the Disputed Domain Name. As Complainant notes, Respondent is not commonly known by the Disputed Domain Name, and otherwise has no relationship with Complainant.
Respondent has provided no arguments or evidence of legitimate interests to counter Complainant’s contentions on this issue. By virtue of the trademark registration status of the PLAYTEX trademark and GENTLE GLIDE trademark, and Complainant’s contentions about the very large worldwide geographical range of its sales with those Trademarks, Complainant convincingly argues that Respondent has no rights or legitimate interests in the Disputed Domain Name. The Panel, especially in the absence of any response from Respondent, considers that the circumstances described in paragraph 4(c) of the Policy, of proof of legitimate interest by Respondent in the Disputed Domain Name, likely do not exist.
The Panel concludes that the second requirement of the Policy is met.
C. Registered and Used in Bad Faith
Complainant contends (and the Panel accepts as uncontroverted) that Respondent registered the Disputed Domain Name in bad faith because it did so in order to use to misleadingly divert Internet traffic or to prevent Complainant from using its PLAYTEX Trademark and GENTLE GLIDE Trademark in a corresponding domain name. Furthermore, Panel notes that Respondent was very likely aware, when it registered the Disputed Domain Name in 2006, of Complainant’s substantial common law and trademark registration rights in the PLAYTEX trademark and GENTLE GLIDE trademark - see Complainant’s trademark registrations in “Factual Background,” Section 4 above, and Complainant’s significant use of its Trademarks in the marketplace (as described in “Discussion and Findings - Identical or Confusingly Similar”, Section 6A above).
Complainant further contends (and the Panel accepts as uncontroverted) that Respondent is using the Disputed Domain Name in bad faith to prevent Complainant from using its PLAYTEX Trademark and GENTLE GLIDE Trademark in a corresponding domain name, or to divert traffic for its own benefit (specifically, to misleadingly divert Internet traffic to a pay-per-click web site associated with the Disputed Domain Name that promotes adult content products).
The Panel concludes that the third requirement of the Policy is met.
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 <playtexgentleglide.com> be transferred to Complainant.
Mark Ming-Jen Yang
Dated: June 11, 2007
1 Although the main body of the Complaint did not refer to this registration, Exhibit D of the Complaint does have a USPTO TESS printout for this registration. The Panel infers a small lapse in the drafting of the Complaint and corrects on its initiative. Even without reference to this registration, the common law rights to PLAYTEX are substantial and the Panel’s reasoning and decision would be unchanged.
2 The Panel infers this date from the Whois record of Exhibit A of the Complaint. Even if this inferred date is incorrect, there could be no date of domain name registration before the very early use of Complainant’s Trademarks in the marketplace or have priority over its three US trademark registrations. In other words, the Panel’s reasoning in “Registered and Used in Bad Faith,” Section 6C below, would be unchanged even if this inferred date was incorrect.