The Complainant is N.V Nutricia of Zoetermeer, Netherlands, represented by Dreyfus & associés, France.
The Respondent is svemirNet, Emir Mujezinovic of Belgrade, Serbia.
2. The Domain Name and Registrar
The disputed domain name <netnutricia.com> is registered with Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 1, 2009. On July 2, 2009, the Center transmitted by email to Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com a request for registrar verification in connection with the disputed domain name. On July 6, 2009, Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com 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 the Complainant on July 7, 2009 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on July 10, 2009. The Center verified that 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on July 14, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was August 3, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on August 13, 2009.
The Center appointed Gerd F. Kunze as the sole panelist in this matter on August 24, 2009. 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 an internationally active food company. It sells under the trademark NUTRICIA infant formula and health products in many countries all over the world. The Complainant is the owner of a number of trademark registrations, consisting of or incorporating the word “nutricia”. In particular it owns the following registrations for the word mark NUTRICIA:
International registration No 326704, dated November 18, 1966, in classes 5, 10, 29, 30 and 32;
International registration No 583636, dated February 24, 1992, in class 5;
International registration No 746226, dated August 2, 2000, in classes 5, 10, 16, 29, 39, 35, 41 and 42.
Additionally, the Complainant is the owner of several domain name registrations incorporating its trademark NUTRICIA, such as <nutricia.nl> and <nutricia-surle-net.com>
On September 14, 2008, svemirNet Emir Mujezinovic registered the domain name <netnutricia.com> and displayed a webpage, showing prominently and separately the terms “net” and “nutricia”, and in small lettering the following text in Serbian: “Hranite se dobro – budite zdravi”, which according to Google translation means: “Eat well – be healthy”. Furthermore the following text is added, also in small lettering:
“Dobro jeli” means, according to Google translation “good eating”.
On December 2, 2008, Complainant sent a cease and desist letter to the registrant, followed by two reminders. On December 17, 2008 the Respondent answered (in English), explaining that in his opinion there was no link between the term “netnutricia” and the Complainant's trademark NUTRICIA.
On January 9, 2009, the Complainant sent again an email to the Respondent reminding him of the Complainant's trademark rights and asking for the transfer of the domain name <netnutricia.com>. Despite a reminder sent on February 18, 2009, the Respondent never got back to the Complainant.
On April 3, 2009, the Complainant noticed that PrivacyProtect.org was mentioned as registrant of the disputed domain name in the WhoIs database. Furthermore, the website formerly displayed at the domain name <netnutricia.com>, had become inactive.
Consequently, the Complainant directed the present Complaint against PrivacyProtect.org as Respondent. However, the Registrar informed the Center that PrivacyProtect.org is only a service used by the registrant of the domain name, who does not wish to be contacted directly. According to the Registrar, the registrant is svemirNet, Emir Mujezinovic, who registered the domain name on September 14, 2008. The Center invited the Complainant to add the newly identified registrant to the Complaint. The Complainant has amended the Complaint upon the Center's invitation.
The Panel also notes that PrivacyProtect.org, in an automatic reply, informed the Center that it is not the actual owner of the disputed domain name, and the Panel finds that the Respondent in the present case is the original registrant of the domain name, namely svemirNet, Emir Mujezinovic, who has been the underlying registrant and owner of the domain name.
This view is confirmed by the fact that at present again svemirNet, Emir Mujezinovic is listed as registrant of the domain name <netnutricia.com> in the WhoIs data base.
5. Parties' Contentions
A. Complainant
The Complainant submits that it is one of the world's leading manufacturers of infant food, and that the trademark NUTRICIA is well-known throughout the world and particularly in the Netherlands, where it was created. The Complainant also submits that under the NUTRICIA house mark hospital nutrition products and nutritional supplements are sold in many countries and that Complainant is a worldwide leader in the field of healthy nutrition, baby and medical food.
B. Respondent
The Respondent did not reply to the Complainant's contentions. He has therefore not contested the allegations of the Complaint, and the Panel shall decide on the basis of the Complainant's submissions, and all inferences that can reasonably be drawn there from (Rules, paragraph 14(b)).
6. Discussion and Findings
A. Identical or Confusingly Similar
The domain name <netnutricia.com> consists of the generic term “net” and the word “nutricia” which is distinctive for food products, as confirmed by the trademark registrations of the Complainant.
Consequently, the Respondent has registered a domain name, of which the only distinctive term is identical to the trademark NUTRICIA of the Complainant. The addition of the generic term “net” as prefix cannot distinguish the domain name from the Complainant's trademark (the gtld “.com” is generally not taken into consideration when judging confusing similarity).
The domain name <netnutricia.com> is therefore, if not identical, at least confusingly similar to the trademark NUTRICIA of the Complainant.
B. Rights or Legitimate Interests
The Panel finds that “nutricia” is not a descriptive term, in which the Respondent might have a legitimate interest. It is identical to several prior trademark registrations in which the Complainant has exclusive rights, and also confusingly similar to the Complainant's website “www.nutricia.nl”. The Respondent has no connection or affiliation with the Complainant, who has not consented to the Respondent's use of the domain name, which combines the term “nutricia” with the non-distinctive term “net”.
Furthermore, none of the circumstances listed under paragraph 4(c) of the Policy, possibly demonstrating rights or legitimate interests, are given. The Respondent does not use the domain name <netnutricia.com> for his own commercial or noncommercial activities and has not demonstrated any preparations for such use. He used the domain name only for a couple of months for a website, on which the separate terms “net” and “nutricia” were displayed together with some text in Serbian, such as “dobro jeli” which means “good eating” (see above heading 4 of this decision). The Panel finds that for the same reason that the Respondent does not promote his own commercial activities with the help of the disputed domain name, the Respondent does not seem to have become commonly known under it.
Based on the Complainant's prima facie showing and in the absence of any submission by the Respondent, the Panel therefore concludes that the Respondent has no rights or legitimate interests in the domain name <netnutricia.com>.
C. Registered and Used in Bad Faith
(i) Registration in bad faith
NUTRICIA is a world-wide leading infant formula brand and it is used in many countries as a house mark for health and medical products. It is therefore highly unlikely that the Respondent happened to inadvertently select the identical term “nutricia” and to combine it with the generic prefix “net” when creating its domain name.
The Respondent formerly showed prominently and separately the term “net” and the term “nutricia” on his website (see above heading 4 of this decision). This would suggest that the Respondent was particularly interested in the term “nutricia”. Under the circumstances the Panel finds it probable that the Respondent knew of the fame of the Complainant, the Respondent most likely having undertaken searches in one of the search engines on the Internet, such as Google. As evidenced by the Complainant, a search via Google or another search engine using the keyword “nutricia” shows that all first results relate to products or news of the Complainant or companies related to it.
Absent any submission of the Respondent, the Panel therefore finds it more likely than not that the Respondent was aware of the trademark NUTRICIA when he registered the domain name. It would also appear inconceivable that the Respondent could make any use of his domain name which would not infringe rights in the trademark NUTRICIA. It is therefore difficult to imagine that the Respondent had any good faith intention to use the domain name <netnutricia.com>, when registering it.
These findings, together with the findings under section 6(B) that the Respondent has no rights or interests in the disputed domain name, leads the Panel to the conclusion that the domain name <netnutricia.com> has been registered in bad faith.
(ii) Use in bad faith
The Respondent does not use at present the domain name <netnutricia.com>. He ceased using the disputed domain name at the related website, after he had received a cease and desist letter from the Complainant. This would suggest in this Panel's view that the Respondent recognized that the previous prominent use of the term “nutricia” on his website (see above heading 4 of this decision) was infringing the rights of the Complainant in its trademark NUTRICIA. However, the Respondent did not only cease using his domain name for a website, he also tried to hide his identity behind a privacy shield: PrivacyProtect.org. Absent any submission of the Respondent, this conduct may be considered to be an indication of use of the domain name in bad faith.
In this context it must also be taken into consideration that the disputed domain name furnishes the Respondent with an instrument that allows him to activate (again) a website in such a manner as to divert the Complainant's customers to his website. Absent any submission of the Respondent, it is also difficult to imagine any plausible future active use of the disputed domain name by the Respondent that would not be illegitimate, such as being trademark infringement or an infringement of consumer protection legislation. The Respondent has furthermore chosen not to respond to the Complaint and not to cooperate with the Complainant to resolve the dispute.
Taking into account all these circumstances, the Panel concludes that the Respondent's former use and now passive holding of the disputed domain name satisfies the requirements of paragraph 4(a)(iii) of the Policy that the domain name has been registered and is being used in bad faith.
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, <netnutricia.com> be cancelled.
Gerd F. Kunze Sole Panelist
Dated: September 7, 2009
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