The Complainant is Compagnie Gervais Danone of Paris, France, represented by Dreyfus & associés, France.
The Respondent is Pharma Science Nutrients, Inc, of Florida, United States of America (“USA”).
The disputed domain name <actimelon.com> (the “Domain Name”) is registered with GoDaddy.com, Inc. (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) by email (with web access to annexes) on February 19, 2009, and in hard copy on February 24, 2009.
The Center transmitted its request for registrar verification by email to the Registrar on February 20, 2009. The Registrar responded by email on February 20, 2009, stating that it had received a copy of the Complaint, that it was the registrar and the Respondent was the registrant of the Domain Name, that the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”) applied to the registration, that the Domain Name would expire on July 29, 2009 and, subject to expiry, would remain locked during this proceeding, and that the registration agreement was in English and contained a submission by the registrant to the jurisdiction at its principal office for court adjudication of disputes concerning or arising from the use of the Domain Name. The Registrar also provided the contact details relating to the Domain Name on its Whois database.
The Center verified that the Complaint satisfied the formal requirements of the 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 paragraphs 2(a) and 4(a) of the Rules, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on February 26, 2009. The notification appears to have been delivered successfully by email and courier to contact addresses in respect of the Domain Name in the Registrar's Whois database. In accordance with paragraph 5(a) of the Rules, the due date for Response was March 18, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on March 19, 2009.
The Center appointed Jonathan Turner as the sole panelist in this matter on March 27, 2009. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with paragraph 7 of the Rules. Having reviewed the file, the Panel is satisfied that the Complaint complied with applicable formal requirements, was duly notified to the Respondent and has been submitted to a properly constituted Panel in accordance with the Policy, the Rules and the Supplemental Rules.
The Complainant carries on an international business in the development, production and supply of dairy products, beverages, baby food and medical nutrition products. Its products include a probiotic drinking yogurt sold under the mark ACTIMEL, which it has registered as an international mark in numerous countries. In 2008 over 44 billion bottles of this product were sold under this mark in more than 30 countries.
The Respondent registered the Domain Name in July 2008 and has directed it to a parking page containing sponsored links, many of which relate to products competing with the Complainant's ACTIMEL product.
The Complainant sent a cease and desist letter to the Respondent on October 21, 2008, with reminders on October 28 and November 4, 2008, but the Respondent did not reply or comply.
The Complainant states that it has rights in the mark ACTIMEL which were registered long before the Respondent registered the Domain Name. It also refers to its registration of a number of domain names containing “actimel” as the second level domain. The Complainant contends that the Domain Name reproduces its trademark in its entirety and that the addition of “on” is not sufficient to distinguish the Domain Name, particularly as this is a common English word.
The Complainant submits that the Respondent has no rights or legitimate interests in the Domain Name, pointing out that the Respondent has not been authorised to use the Complainant's mark, that it had no prior rights or legitimate interests in the Domain Name, and that it is not known by any similar term. The Complainant also refers to the fact that the Respondent did not reply to the Complainant's cease and desist letter as indicating that it has no legitimate interest.
The Complainant alleges that the Domain Name was registered and is being used in bad faith. According to the Complainant, the Respondent must have known of the Complainant's ACTIMEL mark when it registered the Domain Name since this mark is so well known around the world. The Complainant also regards the Respondent's use of the Domain Name for a page of sponsored links, the absence of any other use, and the failure to respond to the cease and desist letter as evidence of bad faith.
The Complainant requests a decision that the Domain Name be cancelled.
As stated above, the Respondent did not reply to the Complainant's contentions.
In accordance with paragraph 4(a) of the Policy, in order to succeed in this proceeding, the Complainant must prove (i) that the Domain Name is identical or confusingly similar to a mark in which it has rights; (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.
In accordance with paragraph 14(b) of the Rules the Panel shall draw such inferences from the Respondent's default as it considers appropriate. This includes the acceptance of plausible evidence of the Complainant which has not been disputed.
The Panel finds that the Complainant has registered rights in the mark ACTIMEL.
The Panel does not accept the Complainant's submission that the Domain Name should be regarded as comprising the Complainant's mark together with the common English word “on” and the generic top level domain suffix. In the Panel's view, Internet users would be unlikely to split the second level domain in their minds in this way. However, the Panel does find that the overall similarity between the Domain Name and the Complainant's mark is likely to cause confusion, particularly bearing in mind the possibility of imperfect recollection.
Accordingly, the first requirement of the Policy is satisfied.
The Panel finds that the Domain Name is directed to a parking page containing sponsored links, many of which connect to websites promoting products competing with the Complainant's ACTIMEL product. In the Panel's view, this use of the Domain Name does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use of the Domain Name.
The Panel also finds that the Respondent is not commonly known by the Domain Name and that there is no other basis on which it can claim to have rights or legitimate interests in respect of the Domain Name.
The second requirement of the Policy is satisfied.
The Panel notes that the Respondent's name indicates its interest in medical nutrition products. Given this interest, the Panel considers that the Respondent must have been aware at all relevant times of the Complainant's use of the mark ACTIMEL for its very extensively sold probiotic yogurt.
As stated above, the Domain Name is directed to a web page of sponsored links, many of which relate to products competing with the Complainant's ACTIMEL product. The Panel finds that by using the Domain Name in this way, the Respondent has intentionally attempted to attract Internet users to its web page by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation or endorsement of its web page, for commercial gain in the form of click-through commissions.
In accordance with paragraph 4(b)(iv) of the UDRP, these circumstances are evidence that the Domain Name was registered and is being used in bad faith. There is nothing in the file which displaces this presumption. The third requirement of the UDRP is satisfied.
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, <actimelon.com>, be cancelled.
Dated: April 1, 2009