Complainant is Chr. Hansen A/S of Hørsholm, Denmark, represented by Sandel, Løje & Wallberg, Denmark.
Respondents are Privacyprotect.org of Moergestel, the Netherlands and Purple Bucquet of Panama City, Panamá (hereinafter “Respondent”).
The disputed domain name <bb12.com> is registered with Power Brand Center LLC.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 12, 2010. On March 12, 16, 18, 19, 23 and 24, 2010, the Center transmitted by email to Power Brand Center LLC a request for registrar verification in connection with the disputed domain name. On March 23 and 24, 2010, Power Brand Center LLC transmitted by email to the Center its verification response, disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on March 24, 2010, providing the registrant and contact information disclosed by the Registrar and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amendment to the Complaint on March 29, 2010. 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” 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 Respondent of the Complaint, and the proceedings commenced on March 30, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was April 19, 2010. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on April 20, 2010.
The Center appointed Lynda J. Zadra-Symes as the sole panelist in this matter on April 30, 2010. 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.
Complainant is a Danish company with operations in more than 30 countries. Complainant develops natural ingredient solutions such as cultures, enzymes, colors and functional blends.
Complainant produces a bacterial culture sold under the trademark BB-12. The product is used widely in dairy products, such as yogurts, in dietary supplements and in pharmaceuticals. Complainant is the owner of trademark registrations for marks containing BB-12 alone or as a dominant element, including the following:
European Community Trademark registration No. 00421933 registered July 20, 1998.
United States Trademark Registration No. 2443560 registered April 10 2001. Although there may be some questions as to whether a trademark registration on the United States Supplemental Register may be sufficient to ground a claim of trademark rights under the Policy, the issue is not determinative in this case as the Complainant relies on additional evidence of registered trademark rights in its BB-12 mark.
Venezuelan Registration No. P279828, registered June 25, 2007.
Brazilian Registration No. 824 586 158, registered April 24, 2007.
Complainant's above-referenced trademarks were registered prior to Respondent's registration of the disputed domain name on December 18, 2007.
Complainant contends that the disputed domain name incorporates Complainant's BB-12 mark in its entirety, is identical to and/or confusingly similar to Complainant's trademark, that Respondent has no rights or legitimate interests in the domain name and that the domain name was registered and is being used in bad faith.
Respondent did not reply to the Complainant's contentions.
In order to succeed in its claim, Complainant must demonstrate that all of the elements enumerated in paragraph 4(a) of the Policy have been satisfied:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) Respondent has no rights or legitimate interests with respect to the disputed domain name; and
(iii) the disputed domain name has been registered and used in bad faith.
Paragraph 15(a) of the Rules instructs this Panel to decide a complaint “on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.”
Complainant has demonstrated that it owns rights in the trademark BB-12 in connection with the goods listed in its trademark registrations. The disputed domain name incorporates Complainant's trademark in its entirety. The generic “.com” TLD extension does not add any distinctive subject matter for the purpose of evaluating confusing similarity. Likewise, the removal of the hyphen between the elements “BB” and “12” does nothing to dispel the likelihood of confusion.
Accordingly, the Panel finds that the disputed domain name is confusingly similar to Complainant's trademarks.
Respondent is not a franchisee, affiliated businesses or licensee of Complainant. Respondent is not an authorized agent of Complainant and Complainant has not authorized Respondent to register the disputed domain name or to otherwise use Complainant's marks.
Respondent is not and has not been commonly known by the disputed domain name. There is no evidence that Respondent has made any demonstrable preparation for use of the domain name in connection with a bona fide offering of goods or services. Respondent's website only provides links to other websites. The website appears to be a search portal with different topics, such as travel, real estate, business and finance. Respondent's website merely redirects Internet traffic to other websites that are not associated with Complainant or its trademark. In the circumstances of this case, such use does not constitute a bona fide offering of goods or services and is not a legitimate use of the domain name.
Accordingly, the Panel finds that Complainant has satisfied the requirement of paragraph 4(a)(ii) of the Policy.
Paragraph 4(b) of the Policy states circumstances which, if found, shall be evidence of the registration and use of the disputed domain name in bad faith:
(i) circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of the complainant, for valuable consideration in excess of the documented out of pocket costs directly related to the domain name; or
(ii) the respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the respondent has engaged in a pattern of such conduct; or
(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to the respondent's website or other on line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of the respondent's website or location of a product or service on the respondent's website or location.
The submitted evidence demonstrates that Respondent is deliberately trading off the goodwill associated with Complainant's marks and re-directing Internet traffic intended for Complainant's website for Respondent's own commercial gain. Such use evidences Respondent's bad faith. Respondent's re-direction of consumers to third party websites likely results in the linked websites paying Respondent a fee for each “click-through.” Thus, Respondent is improperly profiting from its unauthorized use of Complainant's trademark in the disputed domain name. Such use evidences Respondent's bad faith.
The Panel finds that Respondent has registered and used the domain name in bad faith under paragraph 4(b)(iv) 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 <bb12.com> be transferred to Complainant.
Lynda J. Zadra-Symes
Dated: May 18, 2010