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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Multi-Vet Ltd. v. PW/ Budget Pet
Case No. D2008-0559
1. The Parties
The Complainant is Multi-Vet Ltd., Saint-Hyacinthe, Quebec, Canada, represented by Brouillette & Partners LLP, Canada.
The Respondent is PW/Budget Pet, Tampa, Florida, United States of America.
2. The Domain Names and Registrar
The disputed domain names <gentlespray.com> and <premiergentlespray.com> are registered with GoDaddy.com, Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 10, 2008. On April 11, 2008, the Center transmitted by email to GoDaddy.com, Inc. a request for registrar verification in connection with the domain names at issue. On April 14, 2008 GoDaddy.com, Inc. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. Due to some minor discrepancies concerning the specific contact details, in response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amended Complaint on April 22, 2008. The Center verified that the amended 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 April 24, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was May 14, 2008. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 15, 2008.
The Center appointed Knud Wallberg as the sole panelist in this matter on May 20, 2008. 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.
On May 29, 2008, the Panel issued the following Panel Order:
“Under Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), the Complaint may relate to more than one domain name, so long as the person or entity that is the registrant of the domain names specified in the Complaint is the same.
In this action, the Complainant has filed a Complaint against what appears to be two different Respondents, namely Budget Pet, registrant of <premiergentlespray.com>, and PW, registrant of <gentlespray.com>. The Panel is not convinced by the explanation given and the evidence presented by the Complainant that Budget Pet and PW is one and the same.
With reference to Paragraph 10 and 12 of the Rules, the Panel hereby requests the Complainant either to provide the Panel with further statements to support its claim or to dismiss one of the domain names from the Complaint.
In accordance with the Rules, Paragraph 2, any submission made in response to this Procedural Order shall be made in electronic form using the following email address (Domain.Disputes@wipo.int) and, to the extent not possible by e-mail, by fax to +41 22 740 3700, with a copy sent to the other Party.
The documents requested above should be provided by the Complainant to the Center (for forwarding to the Panel) no later than June 10, 2008.”
The Complainant filed its Response to this Order on the same day. On basis of the information provided, in particular the fact that both domain names were registered and are being controlled by the same individual, namely the Administrative Contact Mr. Nick Trianta that the apparent business name “PW” is not registered with the Florida Department of State, that in the header of the printout of the webpage “www.gentlespray.com” reference is made to “www.premiergentelspray.com” (Annex 9) and considering that the Respondent(s) did not submit any arguments or evidence to rebut the Complainant’s contentions, the Panel is prepared to treat the Respondents as one for the purpose of these proceedings.
4. Factual Background
The Complainant is the proprietor of the trademark GENTLE SPRAY registered with the USPTO on September 9, 2003 for training collars for dogs.
The mark was used in commerce in the United States of America even before that and is currently used by the Complainant’s distributor and various authorized resellers and other dealers distributing the Complainant’s Gentle Spray products. The Complainant’s products are sometimes sold under the name Premier Gentle Spray. Through this use the trademark has become well known in the industry as well as amongst consumers.
The disputed domain names, <gentlespray.com> and <premiergentlespary.com>, were registered on March 12, 2007 respectively.
5. Parties’ Contentions
The Complainant’s contentions can be summarized as follows:
The contested domain names are identical or confusingly similar to the trademark GENTLE SPRAY in which the Complainant has rights.
The Respondent has no rights in the names “gentle spray” or “premier gentle spray” and the Complainant has not authorized the Respondent to use their mark. The contested domain names are not used for legitimate non commercial purposes or other forms of legitimate fair use. On the contrary the domain name <gentlespray.com> is used to advertise, sell and distribute the Complainant’s products without authorization and the contested domain name <premiergentlespray.com> provides sponsored links to inter alia the Complainant’s competitors.
The contested domain names were both registered long after the Complainant registered and started using their trademark in the United States of America. In addition, the contested domain name <gentlespray.com> is used in a way that causes consumers to wrongly associate the Respondent’s website to the Complainant. The contested domain name <premiergentlespray.com> is used for what appears to be a pay-per-click (“PPC”) landing page containing sponsored links to inter alia the Complainant’s competitors which is similarly suited to cause confusion amongst consumers looking for the Complainant’s products .
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
According to paragraph 15(a) of the Rules, the Panel shall decide the Complaint on the basis of the statements and documents submitted, in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.
In accordance with paragraph 4(a) of the Policy, the Complainant must prove that each of the three following elements is satisfied:
(i) the domain names are 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 domain names; and
(iii) the domain names have been registered or is being used in bad faith.
Paragraph 4(a) of the Policy states that the burden of proving that all three elements are present lies with the Complainant. At the same time, in accordance with paragraph 14(b) of the Rules, if a party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, the Rules or any request from the panel, the panel shall draw such inferences there from as it considers appropriate.
A. Identical or Confusingly Similar
The disputed domain name <gentlespray.com> contains the Complainant’s trademark GENTLE SPRAY in full, and consequently the Panel finds that the disputed domain name is identical to the Complainant’s registered trademark and that the requirements of paragraph 4(a)(i) of the Policy therefore are fulfilled.
The disputed domain name <premiergentlespray.com> contains the Complainant’s trademark GENTLE SPRAY in full, with the addition of the adjective “premier”. The Panel finds that the disputed domain name for the purpose of this proceeding is confusingly similar to the Complainant’s registered trademark and that the requirements of paragraph 4(a)(i) of the Policy therefore are fulfilled.
B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy sets out a number of circumstances which, without limitation, may be effective for a respondent to demonstrate that it has rights to, or legitimate interests in, a disputed domain name, for the purposes of paragraph 4(a)(ii) of the Policy.
The Complainant has not licensed or otherwise permitted the Respondent to use its trademark to apply for the domain names incorporating the Complainant’s mark.
The Complainant alleges and has made a prima facie showing that the Respondent has no rights in the domain names and that the Respondent is not commonly known by the domain names. The Respondent has not rebutted this and, based on the record of this case it is unlikely that any such rights or interests may exist.
Further, the Panel takes the view that the Respondent is not he using the contested domain names for any bona fide offering of goods and services or any fair or non-commercial use.
As far as the disputed domain name <gentlespray.com> is concerned it is used for a website on which the Respondent advertises, sells and distributes the Complainant’s products. The Respondent operates this business without authorization of the Complainant. Even if the Respondent is allowed to sell the Complainant’s products, albeit not under authorization by the Complainant, this would not give the Respondent the right to incorporate this trademark into his domain name.
As far as the disputed domain name <premiergentlespray.com> is concerned it is used for a PPC parking site which provides sponsored links to inter alia the Complainant’s competitors, which is clearly not fair use under the Policy.
The Panel finds that the Respondent has no rights or legitimate interests in the disputed domain names, and that the requirements of paragraph 4(a)(ii) of the Policy are therefore fulfilled.
C. Registered and Used in Bad Faith
Paragraph 4(a)(iii) of the Policy provides that the Complainant must prove the Respondent’s registration and use of the domain names in bad faith. Paragraph 4(b) sets out, by way of example, a number of circumstances which may be taken as indicative of bad faith.
The Complainant’s trademark was registered and used in the country of domicile for the Respondent well in advance of the date of registration of the disputed domain names. Given the distinctive nature of the mark, it is inconceivable to the Panel in the circumstances that the Respondent registered the domain names without prior knowledge of the Complainant and the Complainant’s mark.
This is underlined by the fact that the disputed domain name <gentlespray.com> is used for a website on which the Respondent advertises, sells and distributes the Complainant’s products. The Respondent operates this business without authorization of the Complainant and by doing so, the Panel therefore finds that the Respondent, by registering and using this domain name, intentionally created a likelihood of confusion as to the source, sponsorship, affiliation or endorsement of the domain name in dispute with the purpose of attracting Internet users to the website for commercial gain.
This is also underlined by the fact that the disputed domain name <premiergentlespray.com> is used for a website that contains sponsored links to other sites that offer competing services to those of the Complainant. The Panel therefore finds that the Respondent, by registering and using this domain name, intentionally created a likelihood of confusion which is liable to disrupt the business of the Complainant.
Considering all the facts and evidence, the Panel therefore finds that the requirements of the Policy, paragraph 4(a)(iii), are fulfilled in this case.
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 names, <gentlespray.com> and <premiergentlespray.com> be transferred to the Complainant.
Dated: June 10, 2008