Church & Dwight Co., Inc. v. Abishek Shankar
Claim Number: FA1902001828318
Complainant is Church & Dwight Co., Inc. (“Complainant”), represented by Vanessa A. Ignacio of Lowenstein Sandler LLP, New Jersey, USA. Respondent is Abishek Shankar (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <churchandwight.com>, registered with GoDaddy.com, 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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 4, 2019; the Forum received payment on February 4, 2019.
On February 5, 2019, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <churchandwight.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On February 7, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 27, 2019 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@churchandwight.com. Also on February 7, 2019, the Written Notice of the Complaint, notifying Respondent of the e-mail 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 Forum transmitted to the parties a Notification of Respondent Default.
On March 1, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the 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
Complainant states that it develops, manufactures, and markets a broad range of consumer household and personal care products, as well as specialty products focused on animal productivity, chemicals and cleaners. It uses the mark CHURCH & DWIGHT. Complainant registered the mark in the European Union in 2008.
Complainant alleges that the disputed domain name is confusingly similar to its mark as it incorporates the entire CHURCH & DWIGHT mark, merely changing the “&” for the term “and”, removing the letter “d” in DWIGHT and adding the “.com” generic top-level domain (“gTLD”).
According to Complainant, Respondent does not have rights or legitimate interests in the disputed domain name. Respondent is not licensed or authorized to use Complainant’s CHURCH & DWIGHT mark and is not commonly known by the disputed domain name. Additionally, Respondent is not using the disputed domain name in connection with any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, the resolving website displays pay-per-click link to products and services that are not related to Complainant. Respondent also engaged in typosquatting when it registered the disputed domain name. Furthermore, Respondent offers to sell the disputed domain name to the general public.
Further, says Complainant, Respondent has registered and used the disputed domain name in bad faith. Respondent offers to sell the disputed domain name. Moreover, Respondent engages in typosquatting by deleting the letter “d” in the CHURCH & DWIGHT mark. Additionally, the resolving website displays links to unrelated products. Respondent used a privacy service to conceal its identity. Finally, Respondent had actual knowledge of Complainant’s mark when it registered the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark CHURCH AND DWIGHT, with rights dating back to at least 2008.
The disputed domain name was registered in 2018.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain name resolves to a web site that displays advertising links for products and services that are not related to 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."
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.
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(f), 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 (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.”).
The disputed domain name is confusingly similar to Complainant’s CHURCH & DWIGHT mark as it contains the mark in its entirety, merely replacing the symbol “&” for “and”, removing the letter “d” and adding the “.com” gTLD. Misspelling of a complainant’s mark, by removing letters, and incorporating “and” in place of an ampersand and, adding a gTLD may not sufficiently mitigate any confusing similarity between a disputed domain name and mark under Policy ¶ 4(a)(i). See Am. Online, Inc. v. David, FA 104980 (Forum Apr. 10, 2002) (“The misspelling of a famous mark does not diminish the confusingly similar nature between the marks and the disputed domain names.”); see also Pullman & Comley, LLC v. JONATHAN REICH., FA 1703742 (Forum Dec. 13, 2016) (”Respondent arrives at the disputed domain name by merely eliminating spacing between words of the mark, the addition of the “.com” generic top-level domain (“gTLD”), and the incorporation of “and” in place of the ampersand. These are not alterations that distinguish the disputed domain name from the Complainant’s trademark.”). Accordingly, the Panel finds that the <churchandwight.com> domain name is confusingly similar to Complainant’s CHURCH & DWIGHT mark per Policy ¶ 4(a)(i).
Respondent is not authorized to use Complainant’s CHURCH & DWIGHT mark in any way. Respondent is not commonly known by the disputed domain name: where a response is lacking, WHOIS information can support a finding that a respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark.). Here, the WHOIS information of record identifies registrant as “Abishek Shankar.” The Panel therefore finds under Policy ¶ 4(c)(ii) that Respondent has not been commonly known by the disputed domain name.
In addition, the resolving website offers products and services that are not related to those of Complainant. This does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use under the Policy. See Summit Group, LLC v. LSO, Ltd., FA 758981, Forum Sept. 14, 2006) (finding that the respondent’s use of the complainant’s LIFESTYLE LOUNGE mark to redirect Internet users to respondent’s own website for commercial gain does not constitute either a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)); see also Vapor Blast Mfg. Co. v. R & S Tech., Inc., FA 96577 (Forum Feb. 27, 2001) (finding that the respondent’s commercial use of a confusingly similar domain name suggests that the respondent lacks rights or legitimate interests in the disputed domain name); see also Ripple Labs Inc. v. NGYEN NGOC PHUONG THAO, FA 1741737 (Forum Aug. 21, 2017) (“Respondent uses the [disputed] domain name to divert Internet users to Respondent’s website… confusing them into believing that some sort of affiliation exists between it and Complainant… [which] is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”).
Respondent’s registration of the disputed domain name constitutes typosquatting. Typosquatting may support a finding that the respondent lacks rights or legitimate interests under Policy ¶ 4(a)(ii). See Webster Financial Corporation and Webster Bank, National Assocation v. Pham Dinh Nhut, FA1502001605819 (Forum Apr. 17, 2015) (“Respondent’s acts of typosquatting provide additional evidence that respondent lacks rights and legitimate interests in the disputed domain names pursuant to Policy ¶ 4(a)(ii).”).
For all the above reasons, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, the resolving website promotes products and services unrelated to Complainant’s business. Such use of a domain name can demonstrate a respondent’s bad faith per Policy ¶ 4(b)(iv). See Allianz of Am. Corp. v. Bond, FA 680624 (Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting); see also Fossil, Inc. v. wwwfossil-watch.org c/o Hostmaster, Case No. FA 335513 (Forum Nov. 9, 2004) (finding bad faith where respondent attempted to profit from the fame of complainant’s trademark by attracting internet traffic to his website); see also Tumblr, Inc. v. Ailing Liu, FA1402001543807 (Forum Mar. 24, 2014) (“Bad faith use and registration exists under Policy ¶ 4(b)(iv) where a respondent uses a confusingly similar domain name to resolve to a website featuring links and advertisements unrelated to complainant’s business and respondent is likely collecting fees.”). The Panel therefore finds that Respondent has registered and used the domain name in bad faith per Policy ¶¶ 4(b)(iv).
Further, also as already noted, Respondent engaged in typosquatting. Misspelling of a complainant’s mark in order to commercially benefit from a confusing similarity between a disputed domain name and the mark can evince bad faith under Policy ¶ 4(a)(iii). See Adorama, Inc. v. Moniker Privacy Services, FA1503001610020 (Forum May 1, 2015) (“Respondent has also engaged in typosquatting, which is additional evidence of bad faith registration and use under Policy ¶ 4(a)(iii). Respondents who capitalize on common typing errors engage in bad faith registration under Policy ¶ 4(a)(iii).”). Thus, the Panel finds bad faith registration and use on this ground also, per Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <churchandwight.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: March 1, 2019
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