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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Société des Produits Nestlé S.A. v. Contact Privacy Inc. Customer 1244454020 / Timphan

Case No. D2020-1492

1. The Parties

The Complainant is Société des Produits Nestlé S.A., Switzerland, represented by Studio Barbero, Italy.

The Respondent is Contact Privacy Inc. Customer 1244454020, Canada / Timphan, United States of America (“United States”).

2. The Domain Name and Registrar

The disputed domain name <atrium-innovations.dev> (the “Domain Name”) is registered with Google LLC (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 9, 2020. On June 9, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On June 10, 2020, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on June 18, 2020, 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 amendment to the Complaint on June 19, 2020.

The Center verified that the Complaint, together with the amendment to 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 June 22, 2020. In accordance with the Rules, paragraph 5, the due date for Response was July 12, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 13, 2020.

The Center appointed Alan L. Limbury as the sole panelist in this matter on July 16, 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

In 2018, the Complainant, Société des Produits Nestlé S.A., acquired the privately held company Atrium Innovations Inc. which, since its establishment in 1999, had become a globally recognized leader in science-based natural health products, distributed in more than 50 countries.

The Complainant is the proprietor of numerous ATRIUM INNOVATIONS trademarks, including United States registration No. 4097491, registered on February 14, 2012, and Canadian registration No. TMA 808,243, registered on October 4, 2011. Through its subsidiary Atrium Innovations Inc. the Complainant operates the website “www.atrium-innovations.com”.

The Domain Name does not resolve to an active website. Commencing on the day it was registered, May 6, 2019, the Domain Name has been used to send emails to customers of Atrium Innovations Inc., purporting to be from a genuine employee of that company, stating that Atrium Innovations had changed its company bank account, which was on hold due to some internal issues, and seeking payment of outstanding invoices into a bank account falsely described as another bank account of that company.

5. Parties’ Contentions

A. Complainant

The Domain Name is identical to the trademarks in which the Complainant has rights and the Respondent has no rights or legitimate interests in respect of the Domain Name, which was registered and is being used in bad faith.

As to legitimacy, the Respondent is not a licensee, authorized agent of the Complainant or in any other way authorized to use the Complainant’s trademark ATRIUM INNOVATIONS. The Complainant is unaware of any evidence that the Respondent might be commonly known by a name corresponding to the Domain Name as an individual, business, or other organization. Indeed, because of the use of the protection service to conceal its identity, the Respondent cannot have been commonly known by the Domain Name before any notice of the dispute. The Domain Name is being used for fraudulent purposes. This clearly demonstrates that the Respondent did not intend to use the Domain Name in connection with any legitimate purpose.

As to bad faith, the Respondent’s actual knowledge of the Complainant and its trademark ATRIUM INNOVATIONS at the time of the registration of the Domain Name is clearly demonstrated by the fact that the Respondent, shortly after the registration of the Domain Name, sent emails from the fake addresses based on <atrium-innovations.dev> and impersonating employees of the Complainant’s group. It is thus apparent that the Respondent was not only familiar with the Complainant’s trademarks, but also with the Nestlé Group, when it registered the Domain Name. Therefore, it is clear that the Respondent registered and is using the Domain Name solely for fraudulent purposes.

B. Respondent

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

6. Discussion and Findings

In accordance with paragraph 4(a) of the Policy, to obtain transfer of the Domain Name, the Complainant must prove the following three elements: (i) the Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; (ii) the Respondent has no rights or legitimate interests in the Domain Name; and (iii) the Respondent has registered the Domain Name and is using it in bad faith.

Under paragraph 15(a) of the Rules, “A Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable”.

A respondent is not obliged to participate in a proceeding under the Policy, but if it fails to do so, asserted facts may be taken as true and reasonable inferences may be drawn from the information provided by the complainant. See Reuters Limited v. Global Net 2000, Inc, WIPO Case No. D2000-0441.

A. Identical or Confusingly Similar

The Domain Name incorporates the whole of the Complainant’s ATRIUM INNOVATIONS trademark, adding a hyphen between the two words, which does nothing to distinguish the Domain Name from the mark. The addition of the inconsequential generic Top-Level Domain “.dev” may be disregarded. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.11.2: “The practice of disregarding the TLD in determining identity or confusing similarity is applied irrespective of the particular TLD (including with regard to “new gTLDs)”.

The Panel finds the Domain Name to be virtually identical and thus confusingly similar to the ATRIUM INNOVATIONS trademarks in which the Complainant has rights.

The Complainant has established this element.

B. Rights or Legitimate Interests

Paragraph 4(c) of the Policy sets out three illustrative circumstances as examples which, if established by the Respondent, shall demonstrate rights to or legitimate interests in the domain name for purposes of paragraph 4(a)(ii) of the Policy, i.e.

(i) before any notice to the Respondent of the dispute, the use by the Respondent of, or demonstrable preparations to use, the Domain Name or a name corresponding to the Domain Name in connection with a bona fide offering of goods or services; or

(ii) the Respondent (as an individual, business or other organization) has been commonly known by the Domain Name, even if the Respondent has acquired no trademark or service mark rights; or

(iii) the Respondent is making a legitimate noncommercial or fair use of the Domain Name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.

The fraudulent use of the Domain Name and the Complainant’s assertions are sufficient to constitute a prima facie showing of absence of rights or legitimate interests in respect of the Domain Name on the part of the Respondent. The evidentiary burden therefore shifts to the Respondent to show that it does have rights or legitimate interests in the Domain Name. See Cassava Enterprises Limited, Cassava Enterprises (Gibraltar) Limited v. Victor Chandler International Limited, WIPO Case No. D2004-0753. The Respondent has made no attempt to do so.

In the circumstances of this case, the Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name.

The Complainant has established this element.

C. Registered and Used in Bad Faith

The evidence provided with the Complaint shows that the Respondent was aware of the Complainant’s ATRIUM INNOVATIONS trademark when registering the Domain Name and used it on that very day to impersonate one of the Atrium Innovations Inc.’s employees in order fraudulently to divert payments from a customer for the benefit of the Respondent.

This clearly demonstrates that the Respondent registered and is using the Domain Name in bad faith.

The Complainant has established this element.

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 Domain Name, <atrium-innovations.dev> be transferred to the Complainant.

Alan L. Limbury
Sole Panelist
Date: July 21, 2020

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