Westmore · UDRP DecisionIntimawearbylibresse.com
The Panel ordered transfer of <intimawearbylibresse.com>. It found the domain identical to the Complainant’s registered INTIMAWEAR BY LIBRESSE mark, found no evidence of any bona fide offering, common-name association, or legitimate noncommercial or fair use by the Respondent, and held that the unrebutted prima facie case established the absence of rights or legitimate interests. Bad faith was found because the Respondent registered the domain with knowledge of the Complainant’s rights and used a website containing links resolving to competitors’ websites.
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This decision illustrates a comparatively direct UDRP fact pattern: a domain exactly reproduced a distinctive registered product mark, the registrant supplied no competing explanation or evidence, and the associated website contained links to competitors. The combination supported all three elements, with the competitor links especially relevant to the Panel’s finding that the Respondent knew of the Complainant’s business and registered and used the domain in 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 Essity Hygiene and Health AB v. Super Privacy Service LTD c/o Dynadot / Yekta Kemal Case No. D2020-2899 1. The Parties The Complainant is Essity Hygiene and Health AB (the “Complainant”), Sweden, represented by Demys Limited, United Kingdom. The Respondent is Super Privacy Service LTD c/o Dynadot, United States of America / Yekta Kemal, Turkey (the “Respondent”). 2. The Domain Name and Registrar The disputed domain name <intimawearbylibresse.com> (“Disputed Domain Name”) is registered with Dynadot, LLC (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 3, 2020. The Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. Based on the information provided by the Registrar, the Complainant amended its Complaint on November 4, 2020. 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 November 12, 2020. In accordance with the Rules, paragraph 5, the due date for Response was December 2, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 3, 2020. The Center appointed Haig Oghigian as the sole panelist in this matter on December 14, 2020. 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 Panel finds the following as uncontested facts: The Complainant – Essity Hygiene and Health AB – is a global hygiene and health company headquartered in Stockholm, Sweden. The Complainant manufactures and sells hygiene products including tissue paper, baby diapers, feminine care, incontinence products and products related to wound care. It’s oldest predecessor – Mölnlycke – was founded in 1849. The Complainant conducts business in approximately 150 countries and employs 46,000 staff. The Complainant’s net sales in 2019 amounted to approximately SEK 129bn (EUR 12.2bn). The Complainant was listed on Nasdaq Stockholm on June 15, 2017. The Complainant operates a website at “https://www.essity.com” and by way of general background a number of screenshots detailing the Complainant’s activities and history have been exhibited at Annex 03. Further company data can be viewed at “https://www.essity.com/investors/reports/”. Among the Complainant’s feminine hygiene brands is LIBRESSE. The Complainant operates an umbrella website for the brand at “https://www.libresse.com/”. The brand is used by the Complainant in many countries and, by way of example, the Complainant has exhibited screenshots of its English-language page aimed at the South African market. As part of its range of products under the LIBRESSE brand, the Complainant has developed a feminine hygiene product named INTIMAWEAR BY LIBRESSE. The Complainant is the registrant of European Union trademark number 018092188 for the mark INTIMAWEAR BY LIBRESSE in use classes 5 and 25. The mark has a registration date of October 31, 2019. The Complainant notes that its mark pre-dates the registration of the Disputed Domain Name by over seven months. The Complainant contends that, as spaces cannot be represented in domain names, the Disputed Domain Name is identical to the Complainant’s INTIMAWEAR BY LIBRESSE mark. The Complainant further contends that the generic Top-Level Domain (“gTLD”) “.com” is wholly generic in the sense that it is required only for technical reasons and, as is customary in proceedings under the Policy, should be disregarded for the purposes of comparison with the Complainant's trademarks. 5. Parties Contentions The Complainant respectfully submits that the Disputed Domain Name is identical to a name or mark in which it has Rights in terms of the Policy. The Complainant contends that the Respondent does not have any rights or legitimate interests in the Disputed Domain Name. The Complainant refers to section 2.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), which asks: "How do panels assess whether a respondent lacks rights or legitimate interests in a domain name?" and answers: “While the overall burden of proof in UDRP proceedings is on the complainant, panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the often impossible task of “proving a negative”, requiring information that is often primarily within the knowledge or control of the respondent. As such, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element.” Accordingly, the Complainant seeks to make out a prima facie case to demonstrate that the Respondent does not have rights or legitimate interests in the Disputed Domain Name. The Complainant has found no evidence that the Respondent has been commonly known as INTIMAWEAR BY LIBRESSE prior to or after the registration of the Disputed Domain Dame. The Respondent is not a licensee of the Complainant and has not received any permission or consent from the Complainant to use its registered or unregistered trademarks. The Complainant has found no evidence that the Respondent owns any trademarks incorporating the term INTIMAWEAR BY LIBRESSE. Equally, the Complainant has found no evidence that the Respondent has ever traded as INTIMAWEAR BY LIBRESSE. The website associated with tThe Disputed Domain Name indicates that the Disputed Domain Name has been listed for sale by the Respondent. The Complainant contends that where a domain name is identical to a registered mark, as in the present matter, the offering of a domain name for sale cannot, in and of itself, confer a legitimate interest on the registrant of said Disputed Domain Name. In all of these circumstances, the Complainant asserts that it has established a prima facie case along the lines anticipated by section 2.1 of the WIPO Overview 3.0 , that the Respondent has no rights or legitimate interests in the Disputed Domain Name. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Under paragraph 4(a) of the Policy, the transfer of the Disputed Domain Name may be ordered if the Complainant demonstrates three elements: (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 (iiii) the Disputed Domain Name has been registered and is being used in bad faith. A. Identical or Confusingly Similar The Disputed Domain Name incorporates the Complainant’s mark in its entirety with the exception of there being no spaces; it is therefore obviously recognizable. The WIPO Overview 3.0 states in section 1.7 : “This test typically involves a side-by-side comparison of the domain name and the textual components of the relevant trademark to assess whether the mark is recognizable within the disputed domain name.” The Panel finds that the Disputed Domain Name is identical to the Complainant’s mark. B. Rights or Legitimate Interests No evidence exists to show that (i) the Respondent’s use of the Disputed Domain Name relates to a bona fide offering of goods or services; (ii) the Respondent is commonly known by the Disputed Domain Name; or (iii) the Respondent is making a legitimate noncommercial or fair use of the Disputed Domain Name. At no time has the Complainant authorized the Respondent to use their mark (or any sign that is identical with or confusingly similar to its mark) for the Disputed Domain Name or at all. There is also no evidence that the Respondent is commonly known by the Disputed Domain Name or that the Respondent is making a legitimate noncommercial or fair use of the Disputed Domain Name. Finally, the Respondent’s lack of rights or legitimate interests in the Disputed Domain Name may be inferred from the Respondent’s failure to submit a response to the Complaint (see InterContinental Hotels Group PLC, Six Continents Hotels, Inc., Six Continents Limited v. Domain Admin, Whois Privacy Corp. / Maddisyn Fernandes, Fernandes Privacy Holdings , WIPO Case No. D2017-1072 and Pomellato S.p.A v. Richard Tonetti , WIPO Case No. D2000-0493 , holding that “[…] non-response is indicative of a lack of interests inconsistent with an attitude of ownership and a belief in the lawfulness of one’s own rights.”). Accordingly, based on the available record and Policy, the Panel finds that the Complainant has made out a prima facie case, which has not been rebutted by the Respondent, and that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name. C. Registered and Used in Bad Faith The Respondent registered the Disputed Domain Name in bad faith by doing so with knowledge of the Complainant’s rights in their mark. It is not credible that the Respondent was unaware of the Complainant’s activities and the existence of the Complainant’s mark when it acquired the Disputed Domain Name that incorporates the Complainant’s mark (see WIPO Overview 3.0 , section 3.2.2 ). As the Complainant has submitted, Internet searches for both their mark and the Disputed Domain Name did or would have drawn the Respondent’s attention to the Complainant’s mark. It is also clear that the Respondent was aware of the Complainant’s business, as the links on the Disputed Domain Name website resolves to websites of the Complainant’s competitors. Section 3.1.4 of the WIPO Overview 3.0 states: “[…] the mere registration of a domain name that is identical or confusingly similar (particularly domain names comprising typos or incorporating the mark plus a descriptive term) to a famous or widely-known trademark by an unaffiliated entity can by itself create a presumption of bad faith.” The Panel finds that this principle is applicable here. In addition, the registration of a domain name that is identical or confusingly similar to a trademark by an entity that has no relation to that mark may be suggestive of bad faith (see Price Costco International, Inc. v. Truong Do Thanh Nhan , WIPO Case No. D2020-0936 ; Ebay Inc. v. Wangming , WIPO Case No. D2006-1107 ; Veuve Clicquot Ponsardin, Maison Fondée en 1772 v. The Polygenix Group Co ., WIPO Case No. D2000-0163 ). A finding of bad faith is supported in this case by the fact that “the disputed domain name incorporates the Complainant’s well-known trademark” and that “there appears to be no conceivable good faith use that could be made by the Respondent of the disputed domain name” (see Jazzercise, Inc. v. Fundacion Privacy Services LTD , WIPO Case No. D2020-1133 ). Consequently, the Panel finds that the Disputed Domain Name was 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 <intimawearbylibresse.com> be transferred to the Complainant. Haig Oghigian Sole Panelist Date: December 28, 2020
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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