Westmore · UDRP DecisionActimel.info, Danone.info
The Panel ordered transfer of <actimel.info> and <danone.info>. It found the domain names confusingly similar to Complainant’s registered ACTIMEL and DANONE marks, found no rights or legitimate interests because Respondent lacked authorization and used the domains for PPC parking pages, and found registration and use in bad faith based on multiple unrebutted circumstances, including the marks’ asserted renown, prior UDRP decisions involving Respondent, alleged registration of numerous trademark-corresponding domains, PPC use, and the registration of two domains reflecting Complainant’s marks.
The timeline behind actimel.info
Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.
Westmore reconstructs the full history behind actimel.info — from public RDAP and the Internet Archive — as part of UDRP Intelligence:
How each disputed name was decided in this proceeding.
The case combines several recurring UDRP indicators: exact-match trademark domains, multiple marks of the same complainant, PPC monetization, links associated with the complainant’s products, an alleged broader trademark-domain portfolio, prior UDRP proceedings involving the respondent, and respondent default. The Panel treated these circumstances cumulatively and described the conduct as “extreme bad faith.”
Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.
WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Compagnie Gervais Danone v. Zhao Jiafei Case No. D2015-0833 1. The Parties Complainant is Compagnie Gervais Danone of Paris, France, represented by Dreyfus & associés, France. Respondent is Zhao Jiafei, Huaian, JiangSu, China. 2. The Domain Name and Registrar The disputed domain names <actimel.info> and <danone.info> are registered with GoDaddy.com, LLC (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 13, 2015. On May 13, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On May 13, 2015, the Registrar 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” 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 Respondent of the Complaint, and the proceeding commenced on May 20, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was June 9, 2015. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on June 10, 2015. The Center appointed Martin Schwimmer as the sole panelist in this matter on June 16, 2015. 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, Compagnie Gervais Danone, provides dairy products and other goods under the trademarks DANONE and ACTIMEL (collectively, the “Trademarks”) in many countries. Complainant owns registered trademark rights in DANONE and ACTIMEL, e.g. , International Trademark Registration No. 639,073 designating China for DANONE, registered on January 6, 1995 and International Trademark Registration No. 725,041 designating China for ACTIMEL, registered on October 13, 1999. The dates of creation of the disputed domain names were March 5, 2015 for <actimel.info> and November 13, 2013 for <danone.info>. The Panel has no information about Respondent other than contained in the WhoIs, in that the registrant name is Zhao Jiafei, who provides two addresses in Shuyang/Huaian, Jiangsu, China. 5. Parties’ Contentions A. Complainant Complainant alleges as follows: Compagnie Gervais Danone is a subsidiary of the French group Danone (hereafter “Danone”). Danone alleges it is the global leader in dairy products and number two in bottled water and baby food products. Danone asserts that it controls approximately 26 percent of the world market in fresh dairy products, and does business in over 140 countries, including China. Danone states that is the legal owner of all rights, titles and interests in the trademark DANONE, which it adopted in 1919, and has since registered worldwide. Danone utilizes the trademark in connection with fresh dairy and other products worldwide, and obviously uses the name as part of its trading name. Danone adopted the trademark ACTIMEL in connection with drinkable yogurt in the UK and the rest of Europe, in 1994. Danone now sells ACTIMEL products in 31 countries Complainant promotes products bearing the Trademarks on the Internet, using domain names reflecting the Trademarks, such as <danone.com>, <danone.co.uk>, <actimel.com> and <actimel.co.uk>. The disputed domain names <actimel.info> and <danone.info> entirely reproduce Complainant’s Trademarks ACTIMEL and DANONE. The disputed domain names both resolve towards pay-per-click (“PPC”) parking pages displaying sponsored links. Complainant conducted a reverse WhoIs search which indicates that Respondent has registered approximately 433 domain names reproducing other well-known trademarks and companies such as “Gitz”, “Calvin Klein Inc”, “Clorox” and “Bioderma” (Annex 6 to the Complaint). Respondent has also been subject to various UDRP complaints. See, e.g. , Dormeuil Frères v. Zhao Jiafei, NA , WIPO Case No. D2014-1508 ; NutraSweet Property Holdings, Inc. v. Zhao Jiafei , WIPO Case No. D2014-1253 ; Williams-Sonoma, Inc. v. Zhao Jiafei , WIPO Case No. D2014-0938 ; Kering v. Jiafei Zhao, WIPO Case No. D2014-0872 ; The Gillette Company v. Zhao Jiafei , WIPO Case No. D2013-1954 ; Somfy SAS v. Zhao Jiafei , WIPO Case No. D2013-1741 ; NVIDIA Corporation v. Zhao Jiafei , WIPO Case No. D2013-1014 . Previous UDRP panels have considered the trademarks belonging to Complainant as well-known ( Compagnie Gervais Danone v. Pharma Science Nutrients, Inc , WIPO Case No. D2009-0221 ; Compagnie Gervais Danone v. Sun Li , WIPO Case No. D2008-1933 ; Compagnie Gervais Danone v. Werner Fischer-Weppler, WIPO Case No. D2008-1247 ; Compagnie Gervais Danone v. zhengyongjun , WIPO Case No. D2015-0007 . B. Respondent Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar The Panel finds that the disputed domain names are confusingly similar to Complainant’s Trademarks. The disputed domain names incorporate Complainant’s Trademarks in their entirety. The incorporation of a trademark in its entirety may be sufficient to establish that a domain name is identical or confusingly similar to complainant’s registered trademark ( AT&T Corp. v. William Gormally , WIPO Case No. D2005-0758 ). It is standard practice by UDRP panel to disregard the generic Top-Level Domain (“gTLD”) suffix in this regard, especially in the case of the “.info”, which does little to change the connotation of the second level name. Therefore, the Panel agrees with Complainant that the disputed domain names are confusingly similar to Complainant’s Trademarks. B. Rights or Legitimate Interests The second legal ground to be demonstrated by Complainant, according to the provisions of the Policy, is Respondent’s absence of any rights or legitimate interests in the disputed domain name, per paragraph 4(c) of the Policy or otherwise. Previous UDRP panels have consistently held that it is sufficient for a complainant to prove a prima facie case that respondent does not hold rights or legitimate interests in the domain name (see Croatia Airlines, d.d. v. Modern Empire Internet Limited , WIPO Case No. D2003-0455 ; Belupo d.d. v. WACHEM d.o.o. , WIPO Case No. D2004-0110 ). Once a prima facie case is shown, the burden of production shifts to the respondent to come forward with appropriate allegations or evidence demonstrating its rights or legitimate interests in the disputed domain name. The Panel is satisfied that Respondent has no connection or affiliation with Complainant and has not received any license or consent to use the Trademarks in a domain name or in any other manner. Complainant alleges that there is no such connection here. The Panel confirms that the disputed domain names resolve to PPC parking pages displaying commercial links, some of which identify Complainant and its products in the case of <actimel.info>. There is no evidence of legitimate noncommercial or fair use. There is no evidence of a bona fide offering of goods or services. In addition, Respondent has not submitted any reply to Complainant’s contentions. Therefore, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain names. C. Registered and Used in Bad Faith The Complaint here presents six different unrebutted allegations, any one of which likely would be sufficient to establish bad faith on the part of Respondent: (1) Complainant’s allegations of long time registration, use and renown of the Trademarks; (2) prior UDRP decisions that the Trademarks are well-known; (3) prior UDRP decisions demonstrating that Respondent was engaged in a cybersquatting pattern of conduct; (4) allegations that Respondent owns many other domain names that reflect well-known trademarks; (5) the websites at the disputed domain names are PPC parking pages also referring to Complainant’s products; and (6) the fact that Respondent registered two domain names both of which reflect the Trademarks belonging to Complainant. Add to this the fact that Respondent did not respond to the Complaint. The Panel notes with some surprise that there are still instances such as this, of extreme bad faith, 16 years since the introduction of the UDRP. The Panel therefore finds that Respondent registered and is using the disputed domain names in bad faith. 7. Decision For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain names <actimel.info> and <danone.info> be transferred to Complainant. Martin Schwimmer Sole Panelist Date: July 16, 2015
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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