WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Nutricia International B.V. v. HBilgi Gumus, Bilgi Gumus and Mustafa Bilgin Gumus

Case No. D2019-2499

1. The Parties

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

The Respondents are HBilgi Gumus, Bilgi Gumus and Mustafa Bilgin Gumus, Turkey.

2. The Domain Names and Registrars

The disputed domain name <aptamilmama.net> is registered with LCN.COM Ltd., the disputed domain names <aptamil.shop> and <bebelac.shop> are registered with Atak Domain Hosting Internet ve Bilgi Teknolojileri Limited Sirketi d/b/a Atak Teknoloji.

3. Procedural History

The Complaint was initially filed for four domain names with the WIPO Arbitration and Mediation Center (the “Center”) on October 11, 2019. On October 11, 2019, the Center transmitted by email to the Registrars a request for registrar verification in connection with the disputed domain names. On October 12 and 14, 2019, the Registrars transmitted by email to the Center their verification responses disclosing registrant and contact information for the disputed domain names which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on October 15, 2019, providing the registrant and contact information disclosed by the Registrars, and inviting the Complainant to submit an amendment to the Complaint or to file a separate complaint for any domain names for which it is not possible to demonstrate that all named Respondents are in fact the same entity and/or that all domain names are under common control.

One of the disputed domain names was indicated as repossessed by the concerned Registrar on its verification response and the concerned Registrar was willing to comply with the chosen remedy. Accordingly, the Center sent an email to the Complainant regarding a possible partial settlement of the disputed domain name on October 15, 2019, and the Complainant requested the proceeding to be suspended on October 16, 2019. The Center suspended the proceeding on the same day until November 15, 2019, which was then extended to December 15, 2019, on the Complainant’s request. On December 13, 2019, the Center received the signed settlement form and accordingly it notified the concerned Parties to the settlement and the Registrar of the partial settlement on December 17, 2019. The proceeding was once again extended to January 14, 2020, on the Complainant’s request. On January 14, 2020, the Center sent to the Parties the Notification of Dismissal for the concerned disputed domain name in response to the Complainant’s confirmation of implementation of the settlement. On January 16, 2020, the Complainant requested the proceeding to be reinstituted for the remaining disputed domain names and filed an amended Complaint.

The Center verified that the Complaint together with the amended 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 and 4, the Center formally notified the Respondents of the Complaint, and the proceedings commenced on January 17, 2020. In accordance with the Rules, paragraph 5, the due date for Response was February 6, 2020. The Respondents did not submit any response. Accordingly, the Center notified the Respondents’ default on February 10, 2020.

The Center appointed Gökhan Gökçe as the sole panelist in this matter on February 12, 2020. 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 company offering products related to early life nutrition and medical nutrition. The Complainant develops products, aimed at creating a healthy start in life for children worldwide. The Complainant sells its products worldwide, including in China. The Complainant’s research networks work with specialists, hospitals and universities around the world to ensure that their research project meet the requirements of local markets.

Two of the Complainant’s products is a formula milk APTAMIL and BEBELAC, which also includes cereals range. These products are directed towards babies and toddlers’ development.

The Complainant is the owner of the following APTAMIL and BEBELAC trademark registrations:

- Turkish Trademark No. 84/082525, APTAMIL, registered on March 15, 1999;
- Turkish Trademark No. 2006/12005, APTAMIL, registered on September 12, 2007;
- Turkish Trademark No. 82/073318, BEBELAC, registered on December 31,1992;
- International Trademark No. 766285, BEBELAC, registered on July 9, 2001, protected in several countries, including Turkey;
- International Trademark No. 894039, APTAMIL, registered on July 19, 2006, protected in several countries, including Turkey

In addition, pursuant to the Annex 5 to the Complaint, the Complainant operates, among others, the following domain names reflecting its trademark in order to promote its services:

- <aptamil.com> registered on October 26, 1999;
- <bebelac.com> registered on October 26 1999.

The disputed domain name <aptamil.shop> was registered on June 1, 2019; the disputed domain name <aptamilmama.net> was registered on registered on May 10, 2017; the disputed domain name <bebelac.shop> was registered on June 5, 2019.

The Complainant submitted evidences which show that the disputed domain name <aptamilmama.net> resolves to a website in Turkish entitled “Aptamilmama” commercialising the Complainant’s APTAMIL products and other brands belonging to the Complainant, such as MILUPA and LACTAMIL, thereby implying an affiliation with the Complainant. And, the Complainant states that the disputed domain names <aptamil.shop> and <bebelac.shop> resolve to websites under construction, which can be assimilated to inactive pages. The Panel visited the disputed domain names on February 18, 2020, and determined that all disputed domain names were inactive.

5. Parties’ Contentions

A. Complainant

The Complainant requests the transfer of the disputed domain names.

The Complainant is of the opinion that the disputed domain names are confusingly similar to its trademarks.

Furthermore, the Complainant argues that the Respondents have no rights or legitimate interests in respect of the disputed domain names.

Finally, it is argued that the Respondents have registered and are using the disputed domain names in bad faith. The Complainant believes that the Respondents were fully aware of the Complainant’s trademarks, when registering the disputed domain names. The Complainant is further of the opinion that the Respondents apparently tried to mislead Internet users and to gain illegitimate benefits by freeriding on the goodwill of the Complainant’s trademarks.

B. Respondent

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

6. Discussion and Findings

6.1. Consolidation of Respondents

The Panel has reviewed the Complainant’s arguments (notably that the names of all the Respondents comprise of “Gumus”, they are located in Turkey, they had the same email servers) and noting the Respondents did not participate to the proceeding, the Panel accepts the Complainant’s request for consolidation. In these circumstances, the Panel concludes that the disputed domain names are subject to common control and the consolidation is fair and equitable to all Parties.

6.2 Substantive Issues

Paragraph 15(a) of the Rules requires the Panel to decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.

Under paragraph 4(a) of the Policy, the Complainant bears the burden of showing:

(i) that the disputed domain names are identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

(ii) that the Respondents have no rights or legitimate interests in respect of the disputed domain names; and

(iii) that the disputed domain names have been registered and are being used in bad faith.

Paragraph 4(a) of the Policy states that the Complainant bears the burden of proving that all these requirements are fulfilled, even if the Respondents have not replied to the Complainant’s contentions. Stanworth Development Limited v. E Net Marketing Ltd., WIPO Case No. D2007-1228.

However, concerning the uncontested information provided by the Complainant, the Panel may, where relevant, accept the provided reasonable factual allegations in the Complaint as true. See, section 4.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”).

It is further noted that the Panel has taken note of the WIPO Overview 3.0 and, where appropriate, will decide consistent with the WIPO Overview 3.0.

A. Identical or Confusingly Similar

The Panel considers that the Complainant has satisfied the threshold requirement of having relevant trademark rights. As evidenced in the Complaint, the Complainant is the owner of various APTAMIL and BEBELAC trademarks, which are registered in many jurisdictions, including in Turkey.

The disputed domain names <aptamil.shop> and <bebelac.shop> comprise the Complainant’s trademarks APTAMIL and BEBELAC in its entirety. The only difference between the disputed domain name <aptamil.shop> and the APTAMIL trademark is the addition of the Top-Level Domain (“TLD”) “.shop”. It is same for <bebelac.shop>. However, it is standard practice to disregard the TLD under the confusingly similar test as the TLD is merely considered a standard registration requirement. See WIPO Overview 3.0 section 1.11. Therefore, the disputed domain names are identical to the Complainant’s trademarks.

With regard to the disputed domain name <aptamilmama.net>, the Panel finds that it is confusingly similar to the Complainant’s trademark APTAMIL as the disputed domain name fully incorporate one of the Complainant’s trademarks in its entirety. The addition of dictionary term “mama”, meaning “baby food” in Turkish does not create distinctiveness of the disputed domain name in relation to the Complainant’s registered trademark. See section 1.8 of the WIPO Overview 3.0. The addition of such dictionary terms does not avoid a finding of confusing similarity (Nintendo of America Inc. v. Fernando Sascha Gutierrez, WIPO Case No. D2009-0434, Nutricia International B.V. and N.V. Nutricia v. Hasan Bilgi Gumus, WIPO Case No. D2018-0253).

Accordingly, the Panel finds that the Complainant has established element 4(a)(i) of the Policy.

B. Rights or Legitimate Interests

The Panel further finds that the Respondents have failed to demonstrate any rights or legitimate interests in the disputed domain names.

While the burden of proof on this element remains with the complainant, previous UDRP panels have recognized that this would result in the often impossible task of proving a negative, in particular as the evidence in this regard is often primarily within the knowledge of the respondent. Therefore, the Panel agrees with prior UDRP panels that the Complainant is required to make out a prima facie case before the burden of production of evidence shifts to the Respondents to show that they have rights or legitimate interests in the disputed domain names in order to meet the requirements of paragraph 4(a)(ii) of the Policy. See Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455.

The Panel finds that the Complainant has satisfied this requirement, while the Respondents have failed to file any evidence or make any convincing argument to demonstrate rights or legitimate interests in the disputed domain names according to the Policy, paragraphs 4(a)(ii) and 4(c).

In its Complaint, the Complainant has provided uncontested prima facie evidence that the Respondents have no rights or legitimate interests to use the Complainant’s trademarks in a confusingly similar or even identical way within the disputed domain names.

There is also no indication in the current record that the Respondents are commonly known by the disputed domain names. Furthermore, the Respondents have failed to demonstrate any of the other non-exclusive circumstances evidencing rights or legitimate interests under the Policy, paragraph 4(c) or other evidence of rights or legitimate interests in the disputed domain names.

Therefore, the Panel finds that the Complainant has established element 4(a)(ii) of the Policy.

C. Registered and Used in Bad Faith

It appears that the Respondents have registered the disputed domain names solely for the purpose of creating an association with the Complainant. Although the disputed domain names no longer resolve to active websites, according to printouts of the website linked to the disputed domain names as evidenced in the Complaint, the Panel is finds that the Respondents have intentionally registered the disputed domain names in order to create the false impression that the website is somehow officially linked to the Complainant.

Moreover, the Respondent HBilgi Gumus has previously registered other domain names incorporating APTAMIL and BEBELAC trademarks. See Nutricia International B.V. and N.V. Nutricia v. Hasan Bilgi Gumus, WIPO Case No. D2018-0253 and Nutricia International B.V. v. Bilgi Gumus, WIPO Case No. D2013-1392. For the purposes of the third element of the Policy, such pattern of abusive conduct shall be further evidence of bad faith registration as described under paragraph 4(b)(ii) of the Policy.

In view of all these circumstances, the Panel is of the opinion that due to the earlier rights of the Complainant in the trademarks APTAMIL and BEBELAC, as well as its extensive and intensive use, the Respondents, who appear to be located in Turkey where the Complainant is well-known, were aware of the Complainant and its APTAMIL and BEBELAC trademarks at the time of the registration of the disputed domain names, e.g., Ebay Inc. v. Wangming, WIPO Case No. D2006-1107; General Electric Company v. CPIC NET and Hussain Syed, WIPO Case No. D2001-0087. Referring to Parfums Christian Dior v. Javier Garcia Quintas and Christiandior.net, WIPO Case No. D2000-0226, the Panel believes that the awareness of the Complainant’s trademarks at the time of the registration of the disputed domain names must be considered as an inference of bad faith registration.

At the time of the filing of the Complaint, the disputed domain name <aptamilmama.net> resolved to a website in Turkish entitled “Aptamilmama” commercialising the Complainant’s APTAMIL products and other brands; and the disputed domain names <aptamil.shop> and <bebelac.shop> resolved to websites under construction.

Finally, when the Panel visited the disputed domain names, they resolved to inactive/passive pages and the Respondents have not submitted any evidence or suggestion that they have any intention of using the disputed domain names for any purpose or legitimate activity consistent with good faith use. Section 3.3 of the WIPO Overview 3.0 stating that the lack of active use of the domain names do not as such prevent a finding of bad faith.

Therefore, in light of the above-mentioned circumstances, in the present case, the Panel finds that the disputed domain names have been registered and are being used in bad faith and that the Complainant has established the third element under paragraph 4(a)(iii) of the Policy.

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 names <aptamilmama.net>, <aptamil.shop> and <bebelac.shop> be transferred to the Complainant.

Gökhan Gökçe
Sole Panelist
Date: February 26, 2020