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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Sociйtй Des Produits Nestlй SA v. Kayvan Sadeghi

Case No. DIR2007-0002

 

1. The Parties

The Complainant is Sociйtй Des Produits Nestlй SA, Vevey, Switzerland, represented by Studio Barbero, Italy.

The Respondent is Kayvan Sadeghi, Tehran, Islamic Republic of Iran.

 

2. The Domain Name and Registrar

The disputed domain name <nestle.ir> is registered with IRNIC.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 13, 2007. On June 15, 2007, the Center transmitted by email to IRNIC a request for registrar verification in connection with the domain name at issue. On June 16, 2007, IRNIC 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 pursuant to the .IR Domain Name Dispute Resolution Policy (the “Policy”), the Rules for .IR Domain Name Dispute Resolution Policy (the “Rules”), both adopted by the .IR Domain Registry Authority (“IRNIC”) on December 22, 2003, and the World Intellectual Property Organization Arbitration and Mediation Center Supplemental Rules for .IR 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 July 5, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was July 25, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 27, 2007.

The Center appointed James A. Barker as the sole panelist in this matter on August 14, 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

As the Respondent submitted no Response, nor made any other communication in connection with this case, the following facts are taken uncontested from the Complaint and the case file.

The Complainant is a Swiss company, founded in 1866 by Henri Nestlй. The company has over 250,000 employees and 487 factories in 84 countries around the world.

The Complainant owns a large number of registered trademarks throughout the world for the long-standing mark NESTLE. The Complainant is the owner of a number of registered marks containing the word NESTLE in the Islamic Republic of Iran, where the Respondent resides. Evidence of the Complainant’s registered marks was attached to the Complaint.

The Complainant has also registered its mark as a domain name in a number of top level domains: e.g. <nestle.com>, <nestle.info>, <nestle.mobi>.

The Complainant sells products and services all over the world in various industries. In particular the Complainant sells products in the food industry, including baby foods, breakfast cereals, chocolate & confectionery, beverages, bottled water, dairy products, ice cream, prepared foods, and food services. The Complainant is also active in the pharmaceutical and the pet-care industry.

Nestlй Iran was registered as a company in the Islamic Republic of Iran on September 12, 1973. In the Islamic Republic of Iran, Nestlй owns some of its most famous brands as Nescafй and Cerelac. On September 9, 2001, Nestlй Iran was granted by decree of the Council of The Ministers the permission to invest in the Islamic Republic of Iran in two phases: the purchase of existing production facilities from a local company to manufacture infant cereals; and the manufacture of infant formula.

On the instructions of the Complainant, a web development agency sent an email to the Respondent on January 26, 2007, enquiring whether the Respondent would be interested in selling the disputed domain name. In response to a further email from that agency offering to acquire the domain name for the Respondent’s out-of-pocket costs, the Respondent offered to sell it for USD 44,000.

 

5. Parties’ Contentions

A. Complainant

The following contentions are summarized from the Complaint:

The disputed domain name is identical to the Complainant’s registered marks. The “.ir” extension is not relevant for the purpose of determining whether the disputed domain name is identical to the Complainant’s mark.

The Respondent has no rights or legitimate interests in the disputed domain name. The Respondent has provided no evidence of any such rights or interests.

Rather, the NESTLE mark is strongly distinctive, well-known, and does not have any meaning in any language. It is apparent that the Respondent chose the disputed domain name only with the intention to sell it to the Complainant who is its legitimate owner.

The disputed domain name was also registered in bad faith by the Respondent. The Respondent could not have possibly ignored the existence of the Complainant’s trademark registrations when he registered the disputed domain name.

Previous cases under the UDRP have also found that the Complainant’s mark is world-famous. (See e.g. Sociйtй des Produits Nestlй, S.A. v. Stuart Cook, WIPO Case No. D2002-0118; Sociйtй des Produits Nestlй SA v. Telmex Management Service, WIPO Case No. D2002-0072.) Consequently, the NESTLE mark is not one that could be legitimately adopted other than for the purpose of creating an impression of an association with the Complainant.

In relation to use of the disputed domain name in bad faith, the Respondent registered the disputed domain name with the aim of selling it to the Complainant, and has offered it for sale well in excess of his out-of-pocket costs. Such a use is evidence of bad faith within the meaning of paragraph 4(b)(i) of the Policy.

B. Respondent

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

 

6. Discussion and Findings

For the Complaint to succeed, under paragraph 4(a) of the Policy the Complainant must prove that:

(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 was registered or is being used in bad faith.

The Complainant must prove each of these three elements, which are discussed in turn as follows.

The Policy is substantially similar to the Uniform Domain Name Dispute Resolution Policy (UDRP) and, as such, the Panel has drawn on authority concerning the UDRP, in relation to similar terms of the Policy.

A. Identical or Confusingly Similar

It is beyond doubt that the disputed domain name is identical to the mark NESTLE in which the Complainant has rights. The Complainant attached evidence of those rights to the Complaint. The disputed domain name incorporates that mark entirely, without change or additions.

B. Rights or Legitimate Interests

The Complainant contends that its mark is famous and, as such, is not a mark that another could legitimately adopt without associating itself with the Complainant.

Even without evidence of the Complainant’s registered rights, it is apparent that the Complainant’s mark is so famous that, as such, a Panel could legitimately take the equivalent of ‘judicial notice’ of that fact. Judicial notice is a rule of evidence that allows a matter to be taken as proven, because it is so well-known that it cannot reasonably be contested. The application of that principle avoids the need for a party to prove a matter that is sufficiently obvious. A number of previous panels have, for example, taken such notice of e.g. the fame of marks (see e.g. Saks & Company v. John Zuccarini, WIPO Case No. D2000-1285; Singapore Airlines Limited v. P&P Servicios de Communicacion S.L., WIPO Case No. D2000-0643.). In an administrative proceeding such as this, directed to the summary resolution of disputes on the papers, the principle of judicial notice is one that can appropriately be applied. The application of that principle avoids putting the parties to unreasonable lengths to provide evidence of matters that are not seriously open to doubt.

On this basis, the Panel takes notice of the fact that the Complainant’s NESTLE mark is distinctive and world-famous. The fame of the Complainant’s mark is directly relevant to a finding under this second element of the Policy (and is also relevant to third). The Panel also notes previous panel proceedings under the UDRP (cited above) which made a similar finding in relation to the Complainant’s mark.

The Complainant did not provide direct evidence of trading or being famous in Islamic Republic of Iran, where the Respondent resides. But, having established that is mark is sufficiently famous, it does not need to. As a famous and distinctive mark it is difficult to conceive that the Respondent could have a right or legitimate interest in incorporating it in the disputed domain name.

This finding might be rebutted by sufficient contrary evidence. However, the Respondent has not provided any.

There is no evidence available to the Panel that the Respondent has a right or legitimate interest within the meaning of paragraph 4(c)(i) – (iii) of the Policy. There is no evidence that the Respondent is using or has made demonstrable preparations to use the disputed domain name in connection with a bona fide offering of goods or services. The only evidence of the Respondent’s activity in relation to the disputed domain name is its response to the Complainant, offering to sell it. There is no evidence that the Respondent is commonly known by the disputed domain name. Rather the Respondent is named “Kayvan Sadeghi”. Finally, there is no evidence that the Respondent is making a non-commercial or fair use of the disputed domain name. There is no evidence that the Respondent is making any use of it at all.

There is not otherwise evidence available to the Panel that the Respondent might have a right or legitimate interest in the disputed domain name.

The Complainant argues that the Respondent’s intention was to sell the disputed domain name to its legitimate owner, in light of the fact that it is distinctive and does not have any meaning. But, for the sake of completeness, the Panel notes that the word “nestle” does have a meaning in English. (For example, the Miriam-Webster on-line dictionary defines it as: “to settle snugly or comfortably”.) It may have a meaning in other languages. It is, on the Complainant’s own evidence, also derived from the surname of the company’s founder. Although these facts might, in other circumstances, hypothetically allow for a party to present appropriately supported arguments regarding an interest in that word or name, there are no evidence of such circumstances in this case.

For all these reasons, the Panel finds that the Respondent does not have a right or legitimate interest in the disputed domain name.

C. Registered or Used in Bad Faith

In addressing the question of whether the disputed domain name has also being used in bad faith – because it did not link to an active website – the Complainant refers to the discussion in Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003. In this respect, the Panel notes that, under paragraph 4(a)(iii) of the Policy, it is not necessary for the Complainant to prove that the disputed domain name is registered and used in bad faith. Paragraph 4(a)(iii) of the Policy provides that it is enough for a Complainant to prove that the disputed domain name is either registered or used in bad faith.

In this case, it can be readily inferred that the Respondent at least knew of the Complainant’s mark when he registered the disputed domain name. As noted by the Complainant, the fame of its mark is such that it is difficult to conceive that the Respondent was not aware of it; or that the Respondent could have a legitimate purpose in registering the disputed domain name other than to create a false impression of an association with the Complainant. Similar findings have been made by panels in previous cases involving the Complainant’s mark. (See e.g., as cited by the Complainant, Sociйtй des Produits Nestlй, S.A. v. Stuart Cook, WIPO Case No. D2002-0118; Sociйtй des Produits Nestlй SA v. Myongjin Kim, WIPO Case No. D2005-0509; Sociйtй des Produits Nestlй SA v. Telmex Management Service, WIPO Case No. 2002-0070.)

For these reasons, the Panel finds that the Respondent registered the disputed domain name in bad faith.

 

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, <nestle.ir>, be transferred to the Complainant.

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James A. Barker
Sole Panelist

Dated: August 28, 2007