Zoetis Inc. and Zoetis Services LLC v. shenyutong
Claim Number: FA2203001989394
Complainant is Zoetis Inc. and Zoetis Services LLC (“Complainant”), represented by Laura J. Winston of Offit Kurman, P.A., New York, USA. Respondent is shenyutong (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <zoetispigcare.com>, (‘the Domain Name’) registered with ALIBABA.COM SINGAPORE E-COMMERCE PRIVATE LIMITED.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 23, 2022; the Forum received payment on March 23, 2022.
On March 24, 2022, ALIBABA.COM SINGAPORE E-COMMERCE PRIVATE LIMITED confirmed by e-mail to the Forum that the <zoetispigcare.com> Domain Name is registered with ALIBABA.COM SINGAPORE E-COMMERCE PRIVATE LIMITED and that Respondent is the current registrant of the name. ALIBABA.COM SINGAPORE E-COMMERCE PRIVATE LIMITED has verified that Respondent is bound by the ALIBABA.COM SINGAPORE E-COMMERCE PRIVATE LIMITED 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 March 29, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 18, 2022 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@zoetispigcare.com. Also on March 29, 2022, 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 April 25, 2022 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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.
PRELIMINARY ISSUE: MULTIPLE COMPLAINANTS
In the instant proceedings, there are two complainants. Paragraph 3(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that “[a]ny person or entity may initiate an administrative proceeding by submitting a complaint.” The Forum’s Supplemental Rule 1(e) defines “The Party Initiating a Complaint Concerning a Domain Name Registration” as a “single person or entity claiming to have rights in the domain name, or multiple persons or entities who have a sufficient nexus who can each claim to have rights to all domain names listed in the Complaint.” The Zoetis trademarks are owned by Zoetis Services LLC which is a wholly owned subsidiary of Zoetis Inc. and the Panel finds that the complainants have satisfied the nexus required and are hereinafter referred to as Complainant.
A. Complainant
The Complainant’s contentions can be summarized as follows:
Complainant is the owner of the mark ZOETIS for animal health related goods and services registered in the USA with first use recorded as 2013.
The Domain Name registered in 2021 is confusingly similar to the Complainant’s mark incorporating it in full and adding only the generic term ‘pig care’ designed to confuse customers familiar with the Complainant’s products and services.
The Respondent does not have any legitimate rights or interests in the Domain Name, is not commonly known by it and has not been authorized by the Complainant.
The Domain Name has been used for adult entertainment services which is not a bona fide offering of goods or services or a legitimate noncommercial fair use, it is bad faith registration and use per se. It is a registration made in opportunistic bad faith with full knowledge of the Complainant’s rights designed to misdirect Internet users and disrupt the Complainant’s business.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is the owner of the mark ZOETIS for animal health related goods and services registered in the USA with first use recorded as 2013.
The Domain Name registered in 2021 has been used for adult entertainment services.
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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The Domain Name in this Complaint combines the Complainant’s ZOETIS mark (registered in the USA for animal health related products and services with first use in commerce recorded as 2013), the generic term ‘pig care’ and the gTLD “.com”.
The addition of the generic term ‘pig care’ does not prevent confusing similarity between the Domain Name and the Complainant’s mark. See Abbott Laboratories v. Miles White, FA 1646590 (Forum Dec. 10, 2015) (holding that the addition of generic terms does not adequately distinguish a disputed domain name from complainant’s mark under Policy 4(a)(i).).
The gTLD “.com” does not serve to distinguish the Domain Name from the Complainant’s mark. See Red Hat Inc. v. Haecke, FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel finds that the Domain Name is confusingly similar to a mark in which the Complainant has rights for the purposes of the Policy.
Rights or Legitimate Interests
The Respondent is not authorised by the Complainant and does not appear to be commonly known by the Domain Name according to the WhoIS details. 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).
The use of the Domain Name is commercial and so is not legitimate noncommercial or fair use.
The use of a domain name containing an established trade mark to resolve to unrelated adult orientated material cannot constitute a bona fide use. See Altria Group, Inc. and Altria Group Distribution Company v. xiazihong, FA 1732665 (Forum July 7, 2017).
The Respondent has not answered the Complaint or explained its use of the Complainant’s distinctive trade mark in the Domain Name and for the Respondent’s web site.
As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
The use by the Respondent of the additional term ‘pig care’ in the Domain Name reflecting the Complainant’s business shows that the Respondent was aware of the Complainant and its rights, business, products and services at the time of registration of the Domain Name.
Use of a domain name containing a trade mark with goodwill in relation to a web page hosting adult material is evidence of bad faith registration and use per se. See Molson Canada 2005 v. JEAN LUCAS/DOMCHARME GROUP, FA 1412001596702 (Forum Feb. 10, 2015). The fact that the Respondent’s web sites looks different to the Complainant’s web site is not relevant where a complainant’s trade mark has been used for adult content.
As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <zoetispigcare.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: April 26, 2022
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