Sensient Technologies Corporation v. Private Registrations Aktien Gesellschaft
Claim Number: FA1005001325394
Complainant is Sensient Technologies Corporation (“Complainant”), represented by Ariana
G. Voigt, of Michael Best & Friedrich LLP,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <sensientasia.com>, registered with NETWORK SOLUTIONS, LLC.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on May 18, 2010.
On May 19, 2010, NETWORK SOLUTIONS, LLC confirmed by e-mail to the National Arbitration Forum that the <sensientasia.com> domain name is registered with NETWORK SOLUTIONS, LLC and that Respondent is the current registrant of the name. NETWORK SOLUTIONS, LLC has verified that Respondent is bound by the NETWORK SOLUTIONS, LLC registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On May 24, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 14, 2010 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@sensientasia.com. Also on May 24, 2010, the Written Notice of the Complaint, notifying Respondent of the email addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On June 17, 2010 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Bruce E. Meyerson as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of a Written Notice, as defined in Rule 1. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <sensientasia.com> domain name is confusingly similar to Complainant’s SENSIENT mark.
2. Respondent does not have any rights or legitimate interests in the <sensientasia.com> domain name.
3. Respondent registered and used the <sensientasia.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Sensient
Technologies Corporation, is a leading supplier of flavors, fragrances and
colors used to make a variety of products.
Complainant owns multiple trademark registrations with the United States
Patent and Trademark Office (“USPTO”) for the SENSIENT mark (e.g., Reg. 2,921,015 filed September 19,
2000 and issued January 25, 2005).
Respondent registered the <sensientasia.com> domain name on March 18, 2001. Respondent’s disputed domain name resolves to a website displaying third-party links to websites in competition with Complainant.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) 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.
Complainant has established rights in the SENSIENT mark
pursuant to Policy ¶ 4(a)(i) through its various
registrations of the mark with the USPTO (e.g., Reg. 2,921,015 filed September 19,
2000 and issued January 25, 2005).
See Miller Brewing
Complainant argues that Respondent’s <sensientasia.com> domain name is confusingly
similar to Complainant’s SENSIENT mark pursuant to Policy ¶ 4(a)(i). Respondent’s disputed domain name contains
Complainant’s mark in its entirety, adds the geographically descriptive term “
Therefore, the Panel finds that Respondent’s disputed domain name is confusingly similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has sufficiently met its burden of producing a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii). Therefore, it is Respondent’s responsibility to counter Complainant’s assertion and provide evidence that Respondent does have rights or legitimate interests in the disputed domain name under Policy ¶ 4(c). See Towmaster, Inc. v. Hale, FA 973506 (Nat. Arb. Forum June 4, 2007) (“Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests.”); see also F. Hoffmann-La Roche AG v. Di Salvatore, D2006-1417 (WIPO Feb. 1, 2007) (“Proper analysis of paragraph 4(a)(ii) of the Policy shows that the burden of proof shifts from the Complainant to the Respondent once the Complainant has made out a prima facie case that the Respondent has no rights or interests in the domain names.”). However, Respondent has failed to respond to the Complaint. Consequently, the Panel may presume that Respondent has no rights or legitimate interests in the disputed domain name. Broadcom Corp. v. Ibecom PLC, FA 361190 (Nat. Arb. Forum Dec. 22, 2004) (“Respondent’s failure to respond to the Complaint functions as an implicit admission that [Respondent] lacks rights and legitimate interests in the disputed domain name. It also allows the Panel to accept all reasonable allegations set forth…as true.”). The Panel will nevertheless examine the record in consideration of the factors cited under Policy ¶ 4(c).
Complainant contends that Respondent is not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii). The relevant WHOIS information identifies the registrant of the disputed domain name as “Private Registrations Aktien Gesellschaft” and there is no evidence in the record to suggest that Respondent is otherwise commonly known by the disputed domain name. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the disputed domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark); see also St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (concluding a respondent has no rights or legitimate interests in a disputed domain name where there was no evidence in the record indicating that the respondent was commonly known by the disputed domain name).
Respondent’s disputed
domain name resolves to a website featuring advertisements and links relating
to Complainant’s competitors in the food, fragrance and color industries.
The Panel may infer that Respondent profits through the generation of
click-through fees from the links to Complainant’s competitors.
Therefore, the Panel finds that Respondent’s use of the disputed domain name is
not in connection with a bona fide offering of goods or services under
Policy ¶ 4(c)(i) or a legitimate noncommercial or fair
use of the disputed domain name under Policy ¶ 4(c)(iii). See 24 Hour
Fitness USA, Inc. v. 24HourNames.com-Quality Domains For
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s disputed domain name resolves to a website featuring links to Complainant’s competitors. The confusingly similar disputed domain name likely attracts Internet users that are attempting to access Complainant’s website. Those Internet users are unknowingly redirected to the websites of Complainant’s competitors. Therefore, the Panel finds that Respondent’s use of the disputed domain name constitutes a disruption of Complainant’s business, which is evidence of bad faith registration and use under Policy ¶ 4(b)(iii). See Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (concluding that the use of a confusingly similar domain name to attract Internet users to a directory website containing commercial links to the websites of a complainant’s competitors represents bad faith registration and use under Policy ¶ 4(b)(iii)); see also St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (“This Panel concludes that by redirecting Internet users seeking information on Complainant’s educational institution to competing websites, Respondent has engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”).
Respondent is using the disputed domain name to intentionally divert
Internet users to the associated website, which displays third-party links to
competing websites. In cases such as
this, the Panel presumes that Respondent is collecting click-through fees and
attempting to profit by creating a likelihood of confusion between
Complainant’s SENSIENT mark and the confusingly similar disputed domain
name. The Panel finds that Respondent’s
use of the disputed domain name is further evidence of bad faith registration
and use pursuant to Policy ¶ 4(b)(iv). See Zee TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb.
Forum July 18, 2006) (finding that the respondent engaged in bad faith
registration and use by using a domain name that was confusingly similar to the
complainant’s mark to offer links to third-party websites that offered services
similar to those offered by the complainant); see also
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <sensientasia.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: June 25, 2010
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