The Complainant is Perfetti Van Melle Benelux BV, of Breda, the Netherlands, represented by Perfetti Van Melle S.p.A., of Milan, Italy.
The Respondent is Ingrid or Bron Eelkman Rooda, of Plano, Texas, United States of America.
The disputed domain name <fruitella.info> is registered with GoDaddy.com, Inc.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 3, 2008. On November 4, 2008, the Center transmitted by email to GoDaddy.com, Inc. a request for registrar verification in connection with the disputed domain name. On November 5, 2008, GoDaddy.com, Inc. 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on November 19, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was December 9, 2008. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on December 12, 2008.
The Center appointed Hariram Jayaram as the sole panelist in this matter on December 19, 2008. 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.
The Complainant is a company producing candies. FRUITTELLA is a trade mark used in connection with its products.
The Respondent is the registrant of the disputed domain name <fruitella.info> registered on July 17, 2008.
The Complainant is the owner the trade mark FRUITTELLA registered in many countries including the United States of America, the home country of the Respondent. It has been used on candies since the 1950s and nowadays FRUITTELLA products are widely advertised and sold successfully all over the world. Total net sales in 2007 amounted to USD 100,459,000 and the advertising expenses to USD 5,335,000. Differing only in one letter, the disputed domain name is not only confusingly similar but is almost identical to the Complainant's registered trade mark FRUITTELLA.
The Respondent has not been commonly known by the disputed domain name. The Respondent has no rights on the name chosen as his domain name based on tradition or legitimate prior use. Bearing in mind that FRUITTELLA is a worldwide famous brand, it seems quite strange that the Respondent's choice of his domain name fell on a word so strictly similar to FRUITTELLA, unless the aims were to attempt to exploit the fame of the Complainant's FRUITTELLA products without need to bear any advertising or promotional costs and to take unfair advantage of the Complainant's rights.
The only connection the Complainant had with the Respondent was when the Complainant filed Complaints in the WIPO cases Perfetti Van Melle Benelux BV v. Ingrid or Bron Eelkman Rooda, WIPO Case No. D2008-0617 (for the domain name <fruitella.net>) and Perfetti Van Melle Benelux BV v. Ingrid Rooda, WIPO Case No. D2008-0664 (for the domain name <fruitella.biz>). The Panel's decision was to transfer the domain name to the Complainant in both cases. Even after these decisions, the Respondent did not approach the Complainant to inform of his intention to register the disputed domain name or to ask for consent to its registration, which he should have done if his intention was to use the disputed domain name in good faith. Because of the strict similarity between ‘FRUITTELLA' and the word ‘fruitella', consumers may think there is a link between the Complainant's products and the Respondent's domain name. Searching the Internet for FRUITTELLA products, consumers may also run the risk of misspelling and mistyping FRUITTELLA on the computer ending up in “fruitella”, which resolves to a web-page offering several links to different websites.
The Respondent did not submit a Response to the Complaint.
The disputed domain name is <fruitella.info> and the Complainant's trade mark is FRUITTELLA. The only difference between FRUITTELLA and the disputed domain name is that the disputed domain name is spelt with a single ‘t' while the Complainant's trade mark has a double ‘t'. Such a difference is insufficient to distinguish the disputed domain name from the Complainant's trade mark. The disputed domain name is confusingly similar to the Complainant's trade mark.
In The Sportsman's Guide, Inc. v. Vipercom, WIPO Case No. D2003-0145, the disputed domain names were <sportsmanguides.com> and <sportsmenguides.com> and the Complainant's trade mark was THE SPORTSMAN'S GUIDE. The Panel noted as follows:
“The disputed domain names' similarity with the Mark is obvious. One differs only by deletion of the apostrophe and final letter ‘s' and the other by those distinctions and substitution of an ‘e' for an ‘a'. Minor variations such as these do not suffice to distinguish a domain name from a protected mark. Confusion is obviously likely and (…) intentional”
This Panel agrees with the observation made in the above decision and finds that the Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy.
The Complainant alleges that the Respondent has not been commonly known by the disputed domain name. The Respondent has no rights based on tradition or legitimate prior use. By choosing a domain name which is similar to the Complainant's famous trade mark, the Respondent is attempting to exploit the fame of the Complainant's trademark without incurring advertising or promotional costs.
All these allegations of the Complainant have gone unchallenged by the Respondent who has chosen not to submit a Response. The Panel therefore finds that the Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy.
The Complainant alleges that the Respondent has taken unfair advantage of the Complainant's rights by registering a domain name similar to that of the Complainant's trade mark. The disputed domain name, a misspelling of the Complainant's trade mark, may lead to consumer confusion (UDRP paragraph 4(b)(iv)).
In The Nasdaq Stock Market, Inc. v. NSDAQ.COM, NASDQ.COM and NASAQ.COM, WIPO Case No. D2001-1492, the disputed domain names were <nsdaq.com>, <nasdq.com> and <nasaq.com> and the Complainant's trade mark was NASDAQ. The Panel held:
“The disputed domain names comprise what the Complainant says are common misspellings of the term ‘Nasdaq'. The domain names are almost identical to the Nasdaq mark, the only difference being in each case the lack of only one letter. Quite clearly, the Respondents have sought to take advantage of Internet users typing an incorrect address when seeking to access the Complainant's website, a practice dubbed ‘typosquatting' and condemned in a number of WIPO panel decisions.”
In ESPN, Inc. v. XC2, WIPO Case No. D2005-0444, the Panel held:
“It is well-settled that the practice of typosquatting, of itself, is evidence of the bad faith registration of a domain name.”
This Panel agrees with the observations made in the above decisions.
Once again the allegations of the Complainant have not been challenged by the Respondent. The Panel finds that the Complainant has satisfied the 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 <fruitella.info> be transferred to the Complainant.
Dated: December 31, 2008