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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Nutricia International B.V. v. Bilgi Gumus

Case No. D2013-1392

1. The Parties

The Complainant is Nutricia International B.V. of Schiphol, the Netherlands, represented by Dreyfus & associés, France.

The Respondent is Bilgi Gumus of Antalya, Turkey.

2. The Domain Name and Registrar

The disputed domain name <aptamil2.com> (the "Disputed Domain Name") is registered with Domain.com, LLC (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 6, 2013. On August 6, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On August 6, 2013, the Registrar 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 August 8, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was August 28, 2013. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 29, 2013.

The Center appointed Andrea Mondini as the sole panelist in this matter on September 13, 2013. 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 Complainant is a subsidiary of Danone and is active in the field of baby food and medical nutrition products. The Complainant is the owner of the following trademarks:

- APTAMIL, International Trademark no. 894039, registered on July 19, 2006, claiming goods in classes 5, 29 and 30 and protected in several countries, including Turkey;

- APTAMIL, International Trademark no. 376506, registered on February 2, 1971, claiming goods in classes 5 and protected in several countries.

The Disputed Domain Name was registered on May 19, 2012 by the Respondent and is inactive.

Because the Respondent did not file a response, no further information is known about the Respondent.

5. Parties’ Contentions

A. Complainant

The Complainant contends:

- that the APTAMIL brands enjoy a worldwide reputation for baby nutrition products;

- that the Complainant also owns various domain names containing the APTAMIL trademark, such as <aptamil.com>;

- that the Complainant also offers a product named “Aptamil 2” dedicated to babies after 6 months;

- that the Disputed Domain Name therefore creates a likelihood of confusion with the Complainant's trademark APTAMIL;

- that the Respondent has not been authorized to register and use any domain name incorporating the Complainant's trademarks, nor has any affiliation with the Complainant;

- that the word "aptamil" has no meaning in English;

- that on August 31, 2012, the Complainant sent a cease and desist letter to the Respondent, but that the Respondent never replied;

- that the Respondent therefore has no rights or legitimate interests with respect to the Disputed Domain Name;

- that the Respondent must have been aware of the Complainant's well-known or famous trademark APTAMIL and registered it in bad faith;

- that the passive holding of the Disputed Domain Name constitutes use in bad faith.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

Paragraph 4(a) of the Policy directs that the Complainant must prove each of the following to have the Disputed Domain Name transferred to it:

(i) that the Disputed Domain Name registered by the Respondent 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 Disputed Domain Name; and

(iii) that the Disputed Domain Name has been registered and is being used in bad faith.

A. Identical or Confusingly Similar

Paragraph 4(a)(i) of the Policy provides that the Complainant must establish that the Disputed Domain Name is identical or confusingly similar to a trademark in which the Complainant has rights.

The Complainant has shown that it holds trademark rights in the trademark APTAMIL and that the registration of these trademarks predates the registration of the Disputed Domain Name.

The Disputed Domain Name incorporates the trademark APTAMIL in its entirety. The adding of the numerical term "2" does not dispel but rather reinforces the likelihood of confusion because the Complainant also offers a product named “Aptamil 2” dedicated to babies after 6 months.

The Panel thus finds that the Complainant established that the Disputed Domain Name is confusingly similar to the Complainant's trademark APTAMIL.

B. Rights or Legitimate Interests

Paragraph 4(a)(ii) of the Policy provides that the Complainant must establish that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name .

Although the Complainant bears the ultimate burden of establishing all three elements of paragraph 4(a) of the Policy, panels have recognized that with respect to the second element of the Policy, this could result in the potentially impossible task of proving a negative proposition. Such a proof requires information that is primarily within the knowledge of the respondent. Therefore, the common view is that paragraph 4(c) of the Policy shifts the burden of production to the respondent to come forward with evidence of a right or legitimate interest in the disputed domain name, once a complaint establishes a prima facie case showing indicating the absence of such rights or interests. See, e.g. Document Technologies Inc. v. International Electronic Communications Inc., WIPO Case No. D2000-0270.

The Complainant made a prima facie case that the Respondent has no rights or legitimate interests in the Disputed Domain Name. In particular, the Complainant has shown that the Respondent has no obvious connection with the Disputed Domain Name and that there exists no relationship between the parties that would give rise to any license, permission, or authorization by which the Respondent could own or use the Disputed Domain Name.

The Respondent had the opportunity to demonstrate that it has any rights or legitimate interests in the Disputed Domain Name, but it failed to do so. Consequently, the Panel finds that the Respondent has no rights or legitimate interests in the Disputed Domain Name.

C. Registered and Used in Bad Faith

Paragraph 4(a)(iii) of the Policy provides that the Complainant must establish that the Respondent registered and subsequently used the Disputed Domain Name in bad faith. Paragraph 4(b) of the Policy enumerates several circumstances that are evidence of registration and use of a domain name in bad faith.

The APTAMIL trademark is a well-known brand for baby nutrition products. Moreover, the Complainant has established that it offers a product named Aptamil 2 which is identical to the Disputed Domain Name. It is therefore obvious that the Respondent knew or must have known that the registration of the Disputed Domain Name would prevent the Complainant from registering a domain name reflecting the name of its “Aptamil 2” product. Therefore, this Panel finds that the Disputed Domain Name was registered in bad faith.

The Disputed Domain Name is inactive. However, the fact that the Disputed Domain Name is inactive does not prevent a finding of bad faith use: Previous Panels have held that the passive holding of a domain name can qualify as use in bad faith (seeTelstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003 (<telstra.org>); Cleveland Browns Football Company LLC v. Andrea Denise Dinoia, WIPO Case No. D2011-0421(<browns.com>)). Considering that the APTAMIL trademark has a strong reputation and that the Respondent has not provided any evidence of any actual or contemplated good faith use, the Panel finds that under the circumstances of this case passive holding of the Disputed Domain Name amounts to a use in bad faith.

Accordingly, 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 <aptamil2.com> be transferred to the Complainant.

Andrea Mondini
Sole Panelist
Date: September 17, 2013

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