WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Coloplast A/S v. Domain Drop S.A.
Case No. D2007-1559
1. The Parties
The Complainant is Coloplast A/S, Humlebaek, Denmark, represented by Mary Fogarty, United States of America.
The Respondent is Domain Drop S.A., Charlestown, Saint Kitts and Nevis.
2. The Domain Name and Registrar
The disputed domain name <sweencream.com> is registered with DomainDoorman, LLC.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 20, 2007. On October 23, 2007, the Center transmitted by email to DomainDoorman, LLC a request for registrar verification in connection with the domain name at issue. On the same day, DomainDoorman, LLC transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on November 6, 2007. 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”), 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 November 6, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was November 26, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on November 29, 2007.
The Center appointed David Perkins as the sole panelist in this matter on December 7, 2007. 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
4.A The Complainant
4.A.1 The Complainant Coloplast A/S, was founded 50 years ago in Denmark and produced the world's first ostomy bag with adhesive ring, eliminating leakage and restoring self-confidence in the wearer.
4.A.2 Today the business has expanded to include urology, continence, wound and skin care products. The Complainant's skin care product range contains solutions that prevent and treat conditions from simple irritation to fungal infections and skin breakdown. These take the form of antifungal creams, lotions, cleansers, moisturizers and barriers for those at risk of developing skin breakdown.
The SWEEN CREAM trademar
4.A.3 In the United States and Canada the Complainant's skin care products are sold under a number of brands, one of which is SWEEN. Others include BAZA, Beside Care, Critic Aid, Gentle Rain and Isagel.
4.A.4 The Complainant is the proprietor of United States registered trademark No. 1,150,770 for SWEEN CREAM in Class 4 for “skin cream for use as a treatment of minor skin disorders and for general skin care”. The registration claims first use in commerce in January 1975. The registration was applied for in April 1979 and was registered on April 14, 1981.
4.A.5 The original applicant for that United States trademark registration was Sween Corporation. Then in November 1996 the registration was assigned by Sween Corporation to the Complainant. Subsequently, in June 2001 the Complainant further assigned the registration to Coloplast Corporation, a subsidiary of the Complainant. Finally, in July 2007 Coloplast Corporation re-assigned the registration to the Complainant. The Complainant asserts that is also the owner of other SWEEN prefixed trademarks, comprising SWEEN and design; SWEEN FORDUSTIN' and design; SWEEN-A-PEEL; SWEEN SOFT TOUCH and SWEEN XTRACARE II and design. However, no registration particulars of those trademarks are provided.
4.A.6 The Complainant's history, product range and other information about the company is accessed through the domain name <coloplast.com>.
4.B. The Respondent
In the absence of a Response nothing is known about the Respondent, except that it is proprietor of the domain name in issue. The domain name was created on April 28 2006 and resolves to a search website with sponsored links to other websites which the Complainant assumes generates click-through revenue.
5. Parties' Contentions
5.A The Complainant
5.A.1 The Complainant's case is that the domain name in issue is to all intents and purposes identical to its SWEEN CREAM registered US trademark which has been registered for over 25 years.
5.A.2 The Respondent has, according to the Complainant, no rights or legitimate interests in respect of that domain name. There is no evidence that the Respondent has used or has any intention of using the domain name in connection with a bona fide offering of goods and services. It resolves to a search website with sponsored links for other websites.
5.A.3 Here, the Complainant relies upon registration of the SWEEN CREAM trademark (April 1981) some 25 years before creation by the Respondent (April 2006) of the domain name in issue and to the use to which that domain name is put by the Respondent which the Complainant assumes is to generate click-through revenue from the diversion of Internet users expecting to find the Complainant's skin care product to other websites.
5.B The Respondent
As stated, no Response has been filed.
6. Discussion and Findings
6.1 The Policy paragraph 4(a) provides that the Complainant must prove each of the following in order to succeed in an administrative proceeding:
(i) that the Respondent's domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) that the Respondent has no rights or legitimate interests in respect of the domain name; and
(iii) that the domain name has been registered and is being used in bad faith.
6.2 The Policy paragraph 4(c) sets out circumstances which, in particular but without limitation, if found by the Panel to be proved shall demonstrate the Respondent's rights or legitimate interest in the domain name in issue.
6.3 The Policy paragraph 4(b) sets out circumstances which, again in particular but without limitation, if found the Panel to be present shall be evidence of the registration and use of a domain name in bad faith.
6.4 As stated, the circumstances set out in paragraph 4(b) and 4(c) of the Policy are not exclusionary. They are without limitation. That is, the Policy expressly recognizes that other circumstances can be evidence relevant the requirements of paragraphs 4(a)(ii) and (iii) of the Policy.
6.5 Before dealing further with this Complaint, the Panel observes that the Complaint is minimal in the extreme. For example, practically no information is provided about the Complainant company, no evidence is provided of the Complainant's other SWEEN prefixed trademarks, no information relating to transfer of the SWEEN CREAM United States trademark from the original registrant to the Complainant and no relevant information in relation to the website to which the domain name in issue resolves. Complainants should understand that it is their duty to provide adequate information to substantiate their Complaint and that, while the Rules provide that a Panelist may request additional information from a party to an administrative proceeding under the Policy, it is not the Panel's job to undertake its own investigations to fill in the gaps in the information which could and should have been provided in the Complaint but were not.
Notwithstanding, in the instant case because the merits of the Complainant's Complaint appear to be overwhelmingly in its favour, the Panel has undertaken its own research to supplement the material presented to it by accessing the Complainant's website, the website of the US Patent and Trademark Office and also the website to which the domain name in issue resolves. However, complainants should not rely on the Panel undertaking such investigation. The Complaint should contain adequate information to enable the Panel properly to address not only the requirements of paragraph 4(a) of the Policy but also to show why none of the circumstances of paragraph 4(c) of the Policy apply and also to establish that one or more of the circumstances of pars. 4(b) are present in the case in point.
A. Identical or Confusingly Similar
6.6 The trademark comprises the two words SWEEN CREAM. The domain name in issue conjoins to those two words to sweencream. Hence, the domain name is, as the Complainant contends, substantially identical to the SWEEN CREAM trademark. As such, it is clearly confusingly similar.
6.7 Does the Complainant have rights in that trademark? Having regard to the sequence of assignments of the United States trademark registration set out in paragraph 4.A.5 above, the Panel is satisfied that the Complainant has rights in that trademark.
6.8 According, the Complaint fulfils the requirement of paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
6.9 Here the question is whether the Respondent's use of the domain name as a link to other websites is a legitimate noncommercial or fair use of that domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the Complainant's SWEEN CREAM trademark.
6.10 The Complainant's trademark has been in use in the United State for almost 19 years. Accordingly, it is a reasonable assumption that it has achieved a reputation as a skin care product. The Panel visited the website to which the domain name in issue resolves. That website is dedicated to various forms of skin cream, particularly focusing on anti-wrinkle cream and skin creams generally and it to a number of websites which would appear to sell such creams. They include, “www.athena7.co.uk”; “www.bestwrinklecream.org”; “www.healthierloraine.com”; “www.herbalfusion.co.uk; g-spa.co.uk”; “www.creamofcreams.co.uk” and “www.fuzohairandbeauty.com”.
6.11 Certainly, it is the norm that the owner of a domain name used to link such websites will, as the Complainant suggests, obtain click-through revenue. Accordingly, this is not a noncommercial use of the domain name.
6.12 Nor is it, in the Panel's view, a fair use of the domain name, given that it is using the Complainant's brand – the trademark SWEEN CREAM – to attract Internet users to a website offering skin care products which appear to have no connection with the Complainant or its skin care products.
6.13 On that basis such use of the domain name cannot amount to a bona fide offering of goods, nor is there any evidence that the Respondent has been commonly known by the domain name. The latter is particularly improbable given the long established use (19 years) in North America of the Complainant's SWEEN CREAM trademark.
6.14 Accordingly, the Complaint meets the requirement of paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
6.15 In the absence of any Response and given the long period of use of the Complainant's SWEEN CREAM trademark, registration of the domain name cannot have been made other than in bad faith.
6.16 As to use of the domain name, a finding of a lack of rights or legitimate interests in a domain name commonly also leads to a finding of bad faith use. This is such a case. Given the content of the website to which the domain name resolves, described in the forgoing section of this Decision, the Panel has no hesitation in finding that the circumstances set out in paragraph 4(b)(iv) are present in this case. Furthermore, the Respondent has chosen not to respond to this Complaint, which is of itself an indicia of bad faith as established by many Decisions under the Policy.
6.17 Accordingly, the Complaint meets the twin requirements of paragraph 4(a)(iii) of the Policy.
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 name, <sweencream.com> be transferred to the Complainant
Dated: December 19, 2007