Westmore · UDRP DecisionMylittlesudocrem.com
The Panel ordered transfer of <mylittlesudocrem.com>. It found the domain confusingly similar to the Complainant’s registered SUDOCREM mark, that the Respondent lacked rights or legitimate interests, and that registration on the same day as the Complainant’s MY LITTLE SUDOCREM trademark application—followed by an offer to sell the domain for 990.00—established registration and use in bad faith under paragraph 4(b)(i) of the Policy. The Panel also found that the Respondent registered the domain to disrupt the Complainant’s business.
The timeline behind mylittlesudocrem.com
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 mylittlesudocrem.com — from public RDAP and the Internet Archive — as part of UDRP Intelligence:
The case illustrates how a long-standing registered mark, exact incorporation of that mark in a domain, registration contemporaneous with a related trademark application, and an immediate commercial sale offer can combine to establish all three UDRP elements. The timing evidence was especially important to the Panel’s finding that the Respondent knew of and targeted the Complainant’s trademark.
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 Tosara Pharma Limited v. Super Privacy Service LTD c/o Dynadot Case No. D2019-2536 1. The Parties The Complainant is Tosara Pharma Limited, Ireland, represented by SILKA Law AB, Sweden. The Respondent is Super Privacy Service LTD c/o Dynadot, United States of America (“United States”). 2. The Domain Name and Registrar The disputed domain name <mylittlesudocrem.com> is registered with Dynadot, LLC (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 16, 2019. On October 16, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 20, 2019, the Registrar transmitted by email to the Center its verification response confirming that the 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on October 24, 2019. In accordance with the Rules, paragraph 5, the due date for Response was November 13, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 15, 2019. The Center appointed Andrew F. Christie as the sole panelist in this matter on November 21, 2019. 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 develops, manufactures and distributes pharmaceutical products. One of the Complainant’s products is “Sudocrem”, which has a water-repellent base which forms a protective barrier, thereby stopping any irritants (urine and stools) coming into contact with the skin. Sudocrem can also be used for skin conditions that require a soothing, protective antiseptic cream with additional healing, antibacterial and antifungal properties. Almost 100 people are involved in the manufacturing, packaging, quality approval and shipping of Sudocrem, which is sold in dozens of countries worldwide. The Complainant is the owner of the European Union trademark registration number 000239442 for the word trademark SUDOCREM (registered on October 2, 2000), and has a pending trademark application (number 018102547) for the word trademark MY LITTLE SUDOCREM, applied for on August 1, 2019. The Complainant controls a number of domain names containing the term “sudocrem”, which have been registered through its company Actavis AS, including <sudocrem.com> (created on May 2, 1999) and <sudocrem.eu> (created on February 4, 2015). The disputed domain name was registered on August 1, 2019, the same date as the day on which the Complainant applied for a European Union trademark registration for MY LITTLE SUDOCREM. The Complainant has provided a screenshot (undated, but said to be on October 24, 2019) of the website resolving from the disputed domain name, being a parking site the substantive content of which is the statement: “AVAILABLE FOR SALE mylittlesudocrem.com $990.00 BUY NOW.” The Complainant sent a cease and desist letter to the Respondent on September 9, 2019, requesting a voluntary transfer of the disputed domain name to the Complainant. The Complainant sent a reminder follow-up to the Respondent on September 26, 2019. It did not receive a response to either correspondence. 5. Parties’ Contentions A. Complainant The Complainant contends that the disputed domain name directly incorporates the Complainant’s registered trademark SUDOCREM in its entirety, and that its trademark is clearly recognizable in the disputed domain name. The addition of the generic Top-Level Domain (“gTLD”) “.com” does not differentiate the disputed domain name from the trademark. The fact that the disputed domain name also includes the applied-for trademark MY LITTLE SUDOCREM strengthens the impression that the disputed domain name is identical or confusingly similar to the Complainant’s trademark. The Complainant contends that the Respondent has no rights or legitimate interests in the disputed domain name because: (i) an offering of goods or services where the disputed domain name incorporates a trademark which is not owned by the Respondent is not a bona fide offering; (ii) the Respondent is not known by the disputed domain name; (iii) the distinctive trademark registered by the Complainant is not a name one would legitimately choose as a domain name without having specific rights to such a name; (iv) the registration of the disputed domain name on the same date as the Complainant applied for registration of the trademark MY LITTLE SUDOCREM was an opportunistic act by the Respondent which sought to disrupt the Complainant’s business by preventing the Complainant from using the disputed domain name; (v) the website resolving from the disputed domain name states that it is for sale for USD 990; (vi) the timing of the registration of the disputed domain name indicates that the Respondent wanted to register it before the Complainant itself did so, and this demonstrates the Respondent’s knowledge of, and familiarity with, the Complainant’s brands and business; and (vii) the Respondent’s registration of the disputed domain name reflecting the Complainant’s trademarks demonstrates a pattern of cybersquatting. The Complainant contends that the disputed domain name was registered and is being used in bad faith because: (i) the Respondent is using a privacy shield which increases the difficulty for the Complainant of identifying the Respondent, which does not reflect good faith; (ii) the use of the disputed domain name is to advertise that it is for sale, for an amount well in excess of the actual costs of registration; (iii) the registration of the disputed domain name on the very same day as the Complainant applied to the European Union Intellectual Property Office for registration of the trademark MY LITTLE SUDOCREM is evidence that the Respondent’s registration targeted the Complainant’s trademark in an effort to subsequently sell it to the Complainant; (iv) there is no indication that the Respondent owns registered trademarks corresponding to the disputed domain name, or that there is a link between the Respondent and the disputed domain name; (v) the fact that the disputed domain name was registered by the Respondent at the same time as the Complainant’s trademark application was filed leads to the conclusion that the Respondent monitors such trademark applications and quickly registers identical domain names corresponding to such applied-for trademarks; and (vi) as the Respondent bears no relationship to the Complainant’s trademarks, and the disputed domain name has no other meaning except for referring to the Complainant’s names and trademark, there is no way in which the disputed domain name could be used legitimately. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar Once the gTLD “.com” is ignored (which is appropriate in this case), the disputed domain name consists of the whole of the Complainant’s registered word trademark SUDOCREM, preceded by the word string “mylittle”. The Complainant’s trademark SUDOCREM is clearly recognizable within the disputed domain name. The addition of the word string “mylittle” does not avoid the confusing similarity of the disputed domain name with the Complainant’s word trademark. Accordingly, the Panel finds that the disputed domain name is confusingly similar to a trademark in which the Complainant has rights. B. Rights or Legitimate Interests The Respondent is not a licensee of, or otherwise affiliated with, the Complainant, and has not been authorized by the Complainant to use its registered trademark. The Respondent has not provided any evidence that it has been commonly known by, or has made a bona fide use of, the disputed domain name, or that it has, for any other reason, rights or legitimate interests in the disputed domain name. The evidence provided by the Complainant shows that the disputed domain name was used to resolve to a parking page at which it was offered for sale for “$990.00” (currency unspecified). According to the present record, therefore, the disputed domain name is not being used in connection with a bona fide offering of goods or services, or for a legitimate noncommercial or fair use. Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith The disputed domain name was registered many years after the Complainant first registered its SUDOCREM trademark. The evidence on the record provided by the Complainant with respect to the use of its SUDOCREM trademark, together with the fact that the Respondent’s registration of the disputed domain name was on the same day as the Complainant’s application for registration of the word trademark MY LITTLE SUDOCREM, is sufficient to satisfy the Panel that, at the time of registration of the disputed domain name, the Respondent knew of the Complainant’s SUDOCREM trademark, and knew that it had no rights or legitimate interests in the disputed domain name. Furthermore, the evidence on the record provided by the Complainant with respect to the Respondent’s use of the disputed domain name – being to resolve to a webpage at which the disputed domain name was offered for sale for “990.00” – indicates that the Respondent registered the disputed domain name for the purpose of selling it to the Complainant for valuable consideration likely in excess of the Respondent’s documented out-of-pocket costs directly related to the disputed domain name. Such use, according to paragraph 4(b)(i) of the Policy, is evidence of the registration and use of the disputed domain name in bad faith. Moreover, the Panel also finds that the Respondent registered the disputed domain name to disrupt the Complainant’s business. For the above reasons, the Panel finds that the disputed domain name has been registered and is being used 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 name <mylittlesudocrem.com> be transferred to the Complainant. Andrew F. Christie Sole Panelist Date: December 5, 2019
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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