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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Kimberly-Clark Corporation v. N/A, Po Ser and N/A, Hu Lim

Case No. D2009-1345

1. The Parties

The Complainant is Kimberly-Clark Corporation of Wisconsin, United States of America, represented by Brinks Hofer Gilson & Lione, United States of America.

The Respondents are N/A, Po Ser and N/A, Hu Lim both of Shanghai, Peoples` Republic of China.

2. The Domain Names and Registrar

The disputed domain names <kleenexcube.com> and <mykleenexcube.com> are both registered with Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on October 9, 2009. On October 12, 2009, the Center transmitted by email to Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com a request for registrar verification in connection with the disputed domain names. On October 15, 2009, Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com transmitted by email to the Center its verification response disclosing registrants and contact information for the disputed domain names which differed from the named Respondents and contact information in the Complaint. The Center sent an email communication to the Complainant on October 16, 2009 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amendment to the Complaint on October 20, 2009. The Center verified that the Complaint together with the amendment to the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the "Policy" or "UDRP"), 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 Respondents of the Complaint, and the proceedings commenced on October 23, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was November 12, 2009. The Respondents did not submit any response. Accordingly, the Center notified the Respondents` default on November 13, 2009.

The Center appointed Andrew Frederick Christie as the sole panelist in this matter on November 18, 2009. 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 is engaged in the business of manufacturing, marketing and selling various goods, including bath tissue, facial tissue and related products. Since at least as early as 1924 the Complainant, through its predecessor-in-interest Kotex Co. and International Cellucotton Products Co., has been the owner of the KLEENEX mark for various goods, including facial tissues and related products. The Complainant is the owner of numerous trademark registrations in the United States of America and many other countries for KLEENEX in respect of a wide range paper tissue and related products. The Complainant owns a number of domain name registrations that include the KLEENEX mark, including <kleenex.com>, <mykleenextissue.com> and <mykleenexcube.co.uk>.

The First Respondent registered the disputed domain name <kleenexcube.com> on August 21, 2009. The Second Respondent registered the disputed domain name <mykleenexcube.com> on July 31, 2009. At some unspecified time after registration these domain names resolved to parking pages containing sponsored links to third party websites. The parking pages contained text "Buy this domain The domain [disputed domain name] may be for sale by its owner".

5. Parties` Contentions

A. Complainant

The Complainant contends that this single Complaint may be brought in respect of the two disputed domain names, despite the name of each (underlying) registrant being different, because the two registrants are either one and the same person or closely related to one another. Both registrants work and/or reside at the same address and have the same telephone number. The disputed domain names are nearly identical: they differ only by the presence of the word "my" in one of the domain names.

The Complainant contends that the disputed domain names are identical or confusingly similar to its KLEENEX trademark. The added term "cube" is descriptive, because the Complainant`s KLEENEX tissues are sometimes sold in boxes that look like cubes. The added term "my" (in respect of the second disputed domain name) acts as a possessive. The addition of these terms does not distinguish the disputed domain names from the Complainant`s trademark, and hence does not eliminate confusion between the domain names and the trademark.

The Complainant contends that the Respondents have no rights or legitimate interests in the disputed domain names, because they are not affiliated with the Complainant nor authorized by the Complainant to use the KLEENEX trademark. The Respondents` use of the disputed domain names to resolve to parking pages with sponsored links to third party websites is not a bona fide offering of goods or services, and it is not a legitimate noncommercial or fair use of the disputed domain names. The Respondents have not been commonly known by the disputed domain names.

The Complainant contends that the Respondents registered and are using the disputed domain names in bad faith, because they had actual or constructive knowledge of the Complainant`s trademark rights in the KLEENEX trademark by virtue of the Complainant`s numerous United States and foreign trademark registrations, and so the registration of the disputed domain names that are identical or confusingly similar to the trademark are, in and of themselves, in bad faith. The Respondent`s use of the disputed domain names to gain commercial profit through redirection of Internet users to the Respondents` advertising sponsors` third party websites is a use in bad faith. The failure of the Respondents to make a legitimate use of the disputed domain names, and the Respondents` offers (via the statements on the parking pages) to sell the disputed domain names, is further evidence that the domain names were registered and are being used in bad faith.

B. Respondent

The Respondents did not reply to the Complainant`s contentions.

6. Preliminary Procedural Issue: Consolidation of multiple domain names

A preliminary procedural issue arises for consideration: whether it is appropriate for the Complainant to have brought this Complaint in respect of multiple domain names. While the Policy is silent on the issue, the Rules contain a provision on when a single complaint may be brought in respect of multiple domain names. Paragraph 3(c) of the Rules provides: "The complaint may relate to more than one domain name, provided that the domain names are registered by the same domain-name holder." The use of the phrase "provided that" makes it clear that a single complaint cannot be brought in respect of multiple domain names unless the holder of each those domain names is the same person.

The justification for this provision seems clear: to prevent unfairness to respondents (and, possibly, to prevent procedural inefficiency). A single complaint brought in respect of multiple domain names will, self-evidently, be a complaint against multiple respondents unless the holder of each of the disputed domain names is the same person. The bringing of a single complaint against multiple respondents has the potential to be unfair to those respondents. This potential for unfairness is especially strong where there is no connection (such as a common interest in the disputed domain name) between the respondents. Thus, the Rules preclude the bringing of a single complaint in respect of multiple domain names where the holders of the domain names are not the same, because to do otherwise would be to permit a single complaint against apparently unconnected multiple respondents.

This conclusion does not, however, resolve the matter in this case. This is because there is a separate issue to consider: who is the "holder" of the disputed domain names in this case. If, in fact, the "holder" of each of the disputed domain names in this case is the same person, then paragraph 3(c) of the Rules expressly permits this single Complaint to be brought in respect of those domain names.

Paragraph 1 of the Rules defines a number of important concepts. In particular, paragraph 1 defines "Complainant" to be "the party initiating a complaint concerning a domain-name registration", and "Respondent" to be "the holder of a domain-name registration against which a complaint is initiated". The use of the word "holder" rather than "registrant" suggests that the "holder" of a domain name may be someone other than the registrant of it. Indeed, this must be so because there are situations in which the registrant of a domain name is not in fact the person who holds the true interest in the domain name. An important example of this situation is where a privacy or proxy registration service has been used. In that situation, it may be said that the person who engaged the privacy or proxy registrant (sometimes called the "underlying registrant") is a "holder" of the domain name – because that person has the power to determine the use to which the domain name is put. (The privacy or proxy registrant may also be considered a "holder" of the domain name because that person has legal title to the domain name, at least according to the public record.)

Another instance of the situation where the "holder" of the disputed domain name includes someone other than the registrant of record is where the registrant is in some way under the control of another person. In that situation, it seems appropriate to consider the other (i.e. the controlling) person as a holder of the disputed domain name. A number of panels deciding cases under the Policy have permitted a single complaint in respect of multiple domain names for which the registrants were not the same person, where the circumstances suggested that the registrants (being the named respondents) were controlled by a single entity – see, e.g., Asset Marketing Systems, LLC v. SmartBuy Corporation, Chan Organization, Mitchell de la Cruz, Gongju Jung et. al., WIPO Case No. D2004-0492 (different registrants/respondents "related and under common control"); and Dr. Ing. h.c.F. Porsche AG v. Kentech, Inc. a.k.a. Helois Lab a.k.a. Orion Web a.k.a. Titan Net a.k.a. Panda Ventures a.k.a. Spiral Matrix and Domain Purchase, NOLDC, Inc., WIPO Case No. D2005-0890 (different domain names/respondents "controlled by the same entity").

Also, it must be recognised that it is possible for the different registrants of record to be, in fact, one and the same entity – i.e. the different registrant names are simply aliases for a single entity. In such a situation, a "holder" of the disputed domain names includes the single entity for which the names of the registrants of record are aliases. Panels have found such a situation to exist where the different registrants have the same contact information – such as the same postal address and telephone number (America Online, Inc. v Johuathan Investments, Inc., and AOLLNEWS.COM, WIPO Case No. D2001-0918), the same postal and email address (Deutsche Telekom AG v. Tyson Rukash / Jonson, WIPO Case No. D2005-1023), or the same office phone number and website (Société des HГґtels Meridien v. Spiral Matrix / Kentech Inc., WIPO Case No. D2005-1196).

It seems to this Panel that the common feature of the various situations identified above is that, while the registrant of record has apparent control over the domain name, some other person has practical control over the domain name. In this Panel`s view, both persons should be considered to be a "holder" of the disputed domain name. Thus, at least for the purposes of determining if a single complaint has been properly brought in respect of multiple domain names, a "holder" of a disputed domain name is any person who has such an interest in the domain name that provides it with apparent or actual control over the domain name. It follows that a single complaint will be properly brought in respect of multiple domain names where there is a common person holding an interest in those domain names.

Applying this principle to the facts of this case, this Panel finds that there is a common person holding an interest in the disputed domain names. The disputed domain names are almost identical, and the contact details of the two registrants are the same. The Complainant asserted that these circumstances establish that the registrants of record are aliases for a single entity. In the absence of any contest from the Respondents on this assertion, this Panel is willing to find that there is a single entity that has practical control over the disputed domain names – that being the entity for whom the names of the registrants of record are aliases. Accordingly, this Panel finds that this single Complaint is properly brought against both of the disputed domain names, despite the fact that the registrant of record for each domain name is different.

7. Discussion and Findings

A. Identical or Confusingly Similar

The disputed domain names are confusingly similar to the Complainant`s KLEENEX trademark. The disputed domain names wholly incorporate the Complainant`s KLEENEX trademark, together with some non-distinguishing added terms. The added term "cube" is descriptive of the shape of the boxes in which the Complainant`s KLEENEX tissues are sometimes sold. The added term "my" (in respect of the second disputed domain name) acts as a possessive adjective. These additions do not lessen the inevitable confusion of the disputed domain names with the Complainant`s KLEENEX trademark that results from the domain names` incorporation of the Complainant`s trademark. This Panel is satisfied that the disputed domain names are confusingly similar to the Complainant`s trademark.

B. Rights or Legitimate Interests

The Respondents are not associated with the Complainant or any business conducted by the Complainant under its KLEENEX trademark, and they have not been licensed by the Complainant to use the KLEENEX trademark. The Respondents have not asserted that they have any rights or legitimate interests in the disputed domain names, and given the confusing similarity of the disputed domain names to the Complainant`s KLEENEX trademark it is difficult to conceive of any such rights or interests. This Panel is satisfied that the Respondents do not have any rights or legitimate interests in the disputed domain names.

C. Registered and Used in Bad Faith

The Complainant has been using the KLEENEX trademark for a very long time before the disputed domain names were registered. In the absence of any explanation from the Respondents to the contrary, the obvious conclusion is that the Respondents registered the disputed domain names to take advantage of the confusing similarity between the domain names and the Complainant`s trademark. The Respondents have used the disputed domain names to resolve to parking pages containing sponsored links to third party websites. These are uses of the domain names that intentionally derive commercial benefit from the confusing similarity of the domain names to the Complainant`s trademark. This Panel is satisfied that the Respondents registered and are using the disputed domain names in bad faith.

8. 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 names <kleenexcube.com> and <mykleenexcube.com> be transferred to the Complainant.


Andrew F. Christie
Sole Panelist

Dated: December 7, 2009

 

Источник информации: https://internet-law.ru/intlaw/udrp/2009/d2009-1345.html

 

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