WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Tetra Laval Holdings & Finance S.A. v. ddd Firat, Analiz
Case No. D2019-2864
1. The Parties
The Complainant is Tetra Laval Holdings & Finance S.A., Switzerland, represented by Valea AB, Sweden.
The Respondent is ddd Firat, Analiz, Turkey.
2. The Domain Name and Registrar
The disputed domain name <tetrapackaging.com> is registered with GoDaddy.com, LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 21, 2019. On November 21, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 22, 2019, 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on November 28, 2019. In accordance with the Rules, paragraph 5, the due date for Response was December 18, 2019.
On November 28, 2019, the Center received an email communication in Turkish from the Respondent. In response, the Center sent a possible settlement email to the Parties. On the same day, the Complainant requested to suspend to the suspend the proceeding to explore settlement options. Another email communication was received from the Respondent on November 30, 2019. On December 13, 2019, the Complainant requested to reinstitute the proceeding. The Center reinstituted the proceeding on December 16, 2019 announcing the Response due date as January 5, 2020. The Respondent did not submit a formal Response. Accordingly, the Center notified the Parties that it was proceeding to the panel appointment stage on January 6, 2020.
The Center appointed Kaya Köklü as the sole panelist in this matter on January 14, 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 Swiss corporation, which is part of the Tetra Laval Group. The Group is an internationally active company for food processing and packaging, initially founded in 1947 in Sweden. The group employs more than 32,000 people and is active in more than 170 countries worldwide.
The Complainant owns various TETRA and TETRA PAK trademark registrations around the world, including in Turkey, where the Respondent appears to be located. According to the provided documents in the case file, the Complainant is, inter alia, the registered owner of the Turkish Trademark Registrations No. 99010647 (registered on July 2, 1999) and No. 196806 (registered on November 21, 1996), covering trademark protection inter alia, for various packaging and package related products.
The Complainant also owns and operates various domain names which incorporate its TETRA and TETRA PAK trademarks, such as <tetrapak.com>.
The Respondent appears to be a company from Turkey. However, the true identity of the Respondent remains unknown as name and contact details in the WhoIs records for the disputed domain name are incomplete.
The disputed domain name was registered on December 10, 2018.
The screenshots, as provided by the Complainant, show that the disputed domain name redirected to a website in the Turkish language, which was used for offering various kinds of product packaging solutions of a competing Turkish company (cf. Annex H to the Complaint). The disputed domain name was also used to send out fraudulent emails (cf. Annex I to the Complaint).
At the time of the decision, the disputed domain name does no longer resolve to an active webpage.
5. Parties’ Contentions
The Complainant requests the transfer of the disputed domain name.
The Complainant is of the opinion that the disputed domain name is confusingly similar to its TETRA and TETRA PAK trademarks.
Furthermore, the Complainant argues that the Respondent has no rights or legitimate interests in respect of the disputed domain name as the Respondent is not making a bona fide offering of goods or services, is not commonly known by the disputed domain name and is not making a noncommercial or fair use of the disputed domain name.
Finally, it is argued that the Respondent has registered and is using the disputed domain name in bad faith. The Complainant particularly argues that the Respondent must have been well aware of the Complainant’s TETRA and TETRA PAK trademarks, when registering the disputed domain name and that the Respondent is trying to trade-off the goodwill and reputation of the Complainant’s trademarks.
Except the informal email communications to the Center mentioned above, the Respondent did not formally reply to the Complainant’s contentions.
6. Discussion and Findings
According to paragraph 15(a) of the Rules, the Panel shall decide the Complaint in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.
In accordance with paragraph 4(a) of the Policy, the Complainant must prove that each of the three following elements is satisfied:
(i) the disputed domain name is identical or confusingly similar to a trademark in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is 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 Respondent has 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 consensus views captured therein.
A. Identical or Confusingly Similar
The Panel finds that the Complainant has registered trademark rights in TETRA and TETRA PAK by virtue of various trademark registrations, including trademark registrations covering protection in Turkey, where the Respondent appears to be located.
The Panel further finds that the disputed domain name is confusingly similar to the Complainant’s registered TETRA and TETRA PAK trademarks. The disputed domain name fully incorporates the Complainant’s TETRA trademark and partly the TETRA PAK trademark. As stated at section 1.8 of the WIPO Overview 3.0, where the relevant trademark is recognizable within the disputed domain name, the addition of other terms would generally not prevent a finding of confusing similarity. The mere addition of the term “packaging” does, in view of the Panel, not serve to avoid a finding of confusing similarity between the disputed domain name and the Complainant’s TETRA and TETRA PAK trademarks.
Accordingly, the Panel finds that the Complainant has satisfied the requirement under paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
The Panel further finds that the Respondent has failed to demonstrate any rights or legitimate interests in the disputed domain name.
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 shifts to the Respondent to show that it has rights or legitimate interests in the disputed domain name 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 Respondent has failed to file any evidence or make any convincing argument to demonstrate rights or legitimate interests in the disputed domain name according to the Policy, paragraphs 4(a)(ii) and 4(c).
In its Complaint, the Complainant has provided uncontested prima facie evidence that the Respondent has no rights or legitimate interests to use the Complainant’s TETRA and TETRA PAK trademarks in a confusingly similar way within the disputed domain name.
There is also no indication in the current record that the Respondent is commonly known by the disputed domain name. In the absence of a formal response, the Respondent has particularly 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 name.
As a conclusion, the Panel finds that the Complainant has also satisfied the requirements of paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
In the Panel’s view, the Respondent has registered and is using the disputed domain name in bad faith.
The Panel is convinced that the Respondent must have had the Complainant’s trade name and its trademarks in mind when registering the disputed domain name.
It even appears that the Respondent has registered the disputed domain name solely for the purpose of creating a misleading association with the Complainant and its packaging products.
After having reviewed the Complainant’s screenshots of the website linked to the disputed domain name (cf. Annex H to the Complaint), the Panel is convinced that the Respondent has intentionally registered the disputed domain name in order to generate traffic by mislead Internet users to its own website and packaging business. The Respondent is apparently working for or at least is somehow connected to a competitor of the Complainant in Turkey, which also offers packaging solutions as the Complainant. There is no need to discuss in detail that registering a domain name comprising a competitor’s company name and trademark constitutes bad faith under the Policy. It is obvious to the Panel that the Respondent in bad faith attitude tries to trade-off the goodwill and reputation of the Complainant’s trade name and trademark rights for illegitimate commercial purposes. The fraudulent email sent in relation to the disputed domain name confirms the latter finding of bad faith.
The fact that the disputed domain name does not currently resolve to an active website does not change the Panel’s findings in this respect.
Taking all facts of the case into consideration, the Panel believes that this is a typical cybersquatting case, which the UDRP was designed to stop.
The Panel therefore concludes that the disputed domain name was registered and is used in bad faith and that the Complainant has also satisfied the third element of the Policy, namely, paragraph 4(a)(iii) of the Policy.
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 <tetrapackaging.com> be transferred to the Complainant.
Date: January 28, 2020