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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Dart Industries Inc. v. Dario Carrasceo Bellido, LK Global Service Limited

Case No. D2018-0403

1. The Parties

The Complainant is Dart Industries Inc. of Orlando, Florida, United States of America, represented by JONAS Rechtsanwaltsgesellschaft mbH, Germany.

The Respondent is Dario Carrasceo Bellido, LK Global Service Limited of Gibraltar, Overseas Territory of the United Kingdom of Great Britain and Northern Ireland ("United Kingdom").

2. The Domain Names and Registrar

The disputed domain names < ituppers.com> and <ituppers-shop.com> are registered with PDR Ltd. d/b/a PublicDomainRegistry.com (the "Registrar").

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on February 22, 2018. On February 22, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On February 26, 2018, 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 March 6, 2018. In accordance with the Rules, paragraph 5, the due date for Response was March 26, 2018.

On March 8, 2018, the Center received a communication from the administrative contact for the disputed domain names. On March 27, 2018, the Center commenced the Panel Appointment Process.

The Center appointed Alistair Payne as the sole panelist in this matter on April 6, 2018. 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 manufacturer and distributor of household products including preparation, storage, containment, and serving products for the kitchen and home, made out of plastic and distributed under the trade mark TUPPERWARE. The Complainant also offers household and kitchen items under the trade mark TUPPER, in particular its Tupper-Turbo Chef and Tupper-Multi Chef products. The Complainant has operated its business in Europe since 1960 and its products are sold in almost one hundred countries. The Complainant owns European Union trade mark registration no. 345876 for TUPPER which was filed on April 1, 1996 and registered on October 6, 1998.

The disputed domain name <ituppers.com> was registered on July 25, 2017 and the disputed domain name <ituppers-shop.com> was registered on December 1, 2017.

5. Parties' Contentions

A. Complainant

The Complainant submits that it owns various registered trade marks worldwide for the TUPPER mark, including European Union trade mark registration no. 345876 for TUPPER registered from priority date April 1, 1996. It says that this mark is wholly incorporated into each of the disputed domain names and that the additional letters "i" and "s" and the word "shop" do not distinguish the respective disputed domain names as they are insignificant differences and lack any distinctiveness. The Complainant notes that on the one hand "i" is an example of a modern and common use, that the addition of "s" is simply to indicate the plural, and that "shop" just indicates commercial selling activity. As a result, says the Complainant, both of the disputed domain names are confusingly similar to the TUPPER trade mark.

The Complainant asserts that it has not authorised or licensed the Respondent's use of its TUPPER mark and that the Respondent is not commonly known by the TUPPER mark. It says that the Respondent is not making a bona fide commercial or noncommercial use of the disputed domain names as it is using them to resolve to a website which, in the case of "www.ituppers-shop.com" offers and sells goods that compete directly with the Complainant's products, and in the case of "www.ituppers.com" the Respondent offers a restaurant finder application and advertises that it is planning to sell prepared food in "Tupper" containers.

The Complainant notes that the disputed domain names were registered many years after it filed its TUPPER trade mark in 1996 and that by the date of the disputed domain names' registration, the Complainant's TUPPER trade mark had been used all over the world and was well known to people looking for household products. As a result, the Complainant submits that the Respondent must have been aware of the Complainant's mark and products when it registered each of the disputed domain names.

The Complainant submits that the Respondent is using each of the disputed domain names to divert Internet users to the Respondent's websites in order to advertise its own or third-party goods or services that are similar to the Complainant's goods and services. In addition, says the Complainant, the Respondent is using the sign "iTuppers" together with a logo showing a household box on each of the websites at the disputed domain names and this is also demonstrative of the Respondent's prior knowledge of the Complainant's mark and business and consequently bad faith. The Complainant also says that the Respondent's use of each of the disputed domain names to divert Internet users to a website at which it appears to be selling competing goods amounts to the disputed domain names having been registered primarily for the purpose of disrupting the business of a competitor or from preventing the Complainant from reflecting its own mark in a corresponding domain name for its own goods and services. As a consequence, the Complainant submits that the disputed domain names were both registered and used in bad faith.

B. Respondent

The Respondent did not reply to the Complaint.

6. Discussion and Findings

A. Identical or Confusingly Similar

The Complainant has demonstrated that it owns registered trade mark rights for its TUPPER mark, including European Union trade mark registration no. 345876 filed on April 1, 1996 and registered on October 6, 1998. The TUPPER mark is wholly incorporated into each of the disputed domain names. The addition of the letters "i" and "s" in the case of <ituppers.com> and of "i" and "s" and "-shop" in the case of <ituppers-shop.com> does not in the Panel's opinion distinguish the respective disputed domain names. The additional letters "i" and "s" and the word "shop" are not distinctive as they result in insignificant differences and the addition of a commonly used English word. In these circumstances the Panel finds that each of the disputed domain names is confusingly similar to the Complainant's TUPPER mark and the Complaint succeeds under paragraph 4(a)(i) of the Policy.

B. Rights or Legitimate Interests

The Complainant submits that it has not authorised or licensed the Respondent's use of its TUPPER mark and that the Respondent is not commonly known by the TUPPER mark and is not making a bona fide commercial or noncommercial use of the disputed domain names.

The Complainant notes that the disputed domain names were registered many years after the Complainant filed its TUPPER trade mark in 1996 and that by the date of their registration its TUPPER trade mark and its Tupperware products had been used all over the world and were well known to people looking for household products. As a result, the Complainant submits that the Respondent must have been aware of the Complainant's mark and products when the Respondent registered each of the disputed domain names, but nevertheless registered them for its own commercial purposes, which is not a bona fide use. The Complainant notes that the Respondent has been using each of the disputed domain names to resolve to websites, which, in the case of "www.ituppers-shop.com" offers and sells goods that compete directly with the Complainant's products and in the case of "www.ituppers.com", offers a restaurant finder application and appears to represent that the Respondent is planning to sell prepared food in "Tupper" containers.

Accordingly, the Panel finds that the Complainant has made out a prima facie case under paragraph 4(a)(ii) of the Policy which has not been rebutted by the Respondent. As a result, and also for the reasons set out under section C below, the Panel finds that the Complaint also succeeds under this element of the Policy.

C. Registered and Used in Bad Faith

The Complainant filed its European Union trade mark registration no. 345876 for TUPPER on April 1, 1996. Each of the disputed domain names were only registered in 2017, many years after that date. By this time the Complainant's mark had been widely used in many countries and based on the evidence submitted by the Complainant, in particular in the United Kingdom. In these circumstances and considering also the Respondent's use of the designation "iTuppers" together with a logo showing a plastic box on each of the websites at the disputed domain names, it seems more likely than not that the Respondent was well aware of the Complainant's products and of the TUPPER mark when it registered the disputed domain names in 2017.

Under paragraph 4(b)(iv) of the Policy there is deemed evidence of registration and use of a domain name in bad faith where it is found that the Respondent has intentionally attempted to attract Internet users for commercial gain to its website by creating a likelihood of confusion as to the source, sponsorship, affiliation or endorsement of its website. The Respondent in this case has used each of the disputed domain names with a view to confusing Internet users into thinking that the Respondent has some affiliation or connection with the Complainant in relation to its TUPPER plastic ware that the Respondent does not have. Internet users who are confused in this way into being diverted to one or other of the websites to which the disputed domain names resolve, are likely to think that the products or services being promoted have been authorised or approved by the Complainant and this perception is only reinforced by the Respondent's use of a logo showing a plastic box on each of the websites. The Complainant submits that it has no relationship with the Respondent and the Respondent's conduct in confusing and diverting Internet users in this way is therefore in bad faith.

Having made these findings, the Panel is not required to consider whether the disputed domain names have been registered primarily for the purpose of disrupting the business of a competitor or from preventing the Complainant from reflecting its own mark in a corresponding domain name for its own goods and services.

Accordingly, the Panel finds that each of the disputed domain names were registered and have been used in bad faith and the Complaint also succeeds 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 <ituppers.com> and <ituppers-shop.com> be transferred to the Complainant.

Alistair Payne
Sole Panelist
Date: April 11, 2018

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