The Procter & Gamble Company v. William Vaughan, River Cruise Investments Ltd.
Case No. D2008-1164
1. The Parties
The Complainant is The Procter & Gamble Company, of United States of America.
The Respondent is William Vaughan, River Cruise Investments Ltd of Australia.
2. The Domain Name and Registrar
The disputed domain name <luvsdiapers.com> ( the “Domain Name”) is registered with InnerWise, Inc. d/b/a ItsYourDomain.com.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 30, 2008. On July 31, 2008, the Center transmitted by email to InnerWise, Inc. d/b/a ItsYourDomain.com a request for registrar verification in connection with the Domain Name at issue. On July 31, 2008, InnerWise, Inc. d/b/a ItsYourDomain.com 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”), 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, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was August 28, 2008. The Respondent did not submit any Response. Accordingly, the Center notified the Respondent’s default on August 31, 2008.
The Center appointed Dawn Osborne as the sole panelist in this matter on September 5, 2008. 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, The Proctor and Gamble Company is an Ohio Corporation well known for manufacture of consumer goods. The Complainant has registered trade marks in the United States of America and Australia for LUVS and has used the trade mark LUVS since at least 1975 for its baby care products.
The Respondent registered the Domain Name on August 24, 2001. It is being used to link to sites offering goods and services not of the Complainant’s manufacture or otherwise connected with the Complainant.
5. Parties’ Contentions
A. Complainant
The Complainant is one of the largest and most highly regarded manufacturers and sellers of consumer goods worldwide, marketing close to 300 high quality products to more than five billion consumers in 140 countries and employs 130,000 people in almost 80 countries worldwide.
The Complainant is the owner of registered trade marks for LUVS in the United States of America and Australia and has used the mark since at least 1975 for its baby care products.
The Complainant has a website at “www.luvs.com”. The products sold by the Complainant, under the LUVS trademark are promoted through advertising in trade magazines, at trade shows, Internet, press releases and via promotions with other companies, as well as advertisements on television, Internet, magazines, billboards and so on. Due to the length of use of the trademark, LUVS has become a famous, recognized trademark for baby care products.
The Domain Name consists of the Complainant’s trade mark LUVS and the generic word “diapers”, diapers being the kind of products sold by the Complainant under the LUVS mark. The addition of the word “diapers” is not sufficient to avoid confusion between the Domain Name and the Complainant’s mark and increases the likelihood of confusion as baby products are sold by the Complainant under the same mark.
The Respondent has no rights or legitimate interests in the Domain Name. The Complainant has no relationship with the Respondent and has not given it permission to use the LUVS trademark. The Respondent’s business has nothing to do with the LUVS trademark and nothing to do with the links on the web site attached to the Domain Name.
The Respondent registered the Domain Name and is using it in bad faith. The Domain Name is connected to a web site listing a number of third party web sites relating to baby products, the same area of business as the Complainant. The Respondent has intentionally attempted to attract for commercial gain Internet users to the web site connected to the Domain Name by creating a likelihood of confusion with the Complainant’s LUVS trade mark as to the source, sponsorship, affiliation or endorsement of the Respondent’s web site. The use the Respondent is making of the web site shows it is well aware of the business the Complainant is in.
B. Respondent
The Respondent did not file a Response or otherwise reply to the Complainant’s contentions.
6. Discussion and Findings
According to paragraph 4(a) of the Uniform Dispute Resolution Procedure Policy, the Complainant must prove that:
(1) The Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; and
(2) The Respondent has no rights or legitimate interests in respect of the Domain Name; and
(3) The Domain Name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
Apart from the “.com” suffix which is not taken into account for the purposes of the Policy, the Domain Name consist of the Complainant’s LUVS registered mark and the generic word (in such context) “diapers”. The addition of the word “diapers” does not serve to distinguish the Domain Name from the Complainant’s mark, but indeed compounds the likelihood of confusion between the Domain Name and the Complainant’s trade mark as the Complainant sells baby products including diapers. The Panel finds that the Domain Name is confusingly similar to the Complainant’s registered trade mark LUVS and as such satisfies paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
The Respondent has not filed a Response (i.e., it has not shown any circumstances under the Policy paragraph 4(c) which may apply to its favor) and does not appear to have any rights or legitimate interests in the Domain Name. The Complainant has indicated that it has not endorsed the Respondent in any way and the Respondent’s business has no obvious connection with the designation “luvs diapers”. As such the Complainant has satisfied paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Rules sets out four non-exclusive criteria which shall be evidence of the registration and use of a domain name in bad faith including
“by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to its web site 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 its web site or location or of a product or service on its web site or location.”
Included in the sponsored links on the web site attached to the Domain Name are headings making references to “Luvs diapers”, “Free baby samples & stuff”, “Free Diapers and Formula”, and “Free baby diapers”. Each of these sponsored listings refer to the Complainants LUVS trade mark or the same area of business for which the Complainant’s LUVS mark is used (but take the user to a web site operated by a third party and not the Complainant). Such use shows that the Respondent is aware of the Complainant and its business and is deliberately taking advantage of the Complainant’s trade mark to drive traffic to third party goods and services in a confusing manner for commercial gain. Accordingly, the panel finds that the Domain Name has been registered and used in bad faith and paragraph 4(a)(iii) of the Policy has been satisfied.
7. Decision
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 <luvsdiapers.com> be transferred to the Complainant.
Dawn Osborne Sole Panelist
Date: September 19, 2008
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