Brand Name Domain Name
Complainant is a Swiss limited liability company founded in 1866 by Henri Nestle and sells products and services all over the world in various industries, in particular the food industry, including baby foods, breakfast cereals, chocolate and confectionary, beverages, bottled water, dairy products, ice cream, prepared foods and food services. It is the owner of over 100,000 international and national trademark registrations worldwide, consisting in or including "NESTLE". Complainant has also registered the world "nestle" in domain names under several different gTLDS and ccTLDs and operates the website www.nestle.com as a main portal aimed at promoting its activities worldwide.
Respondent registered the domain name, "nestle-cereales.com" in September 2008, without Complainant's authorization, which at the time of the Complaint's filing pointed to a website"wwwnestle-cereales.com" where Internet users could find several sponsored links (pay-per-click pages) redirecting mainly to third party websites. There was also a link reproducing the "Nestle" brand and by clicking on it, Internet users were redirected to an additional pay-per-click page where other dedicated links also displaying the brand "Nestle" were published.
As soon as Complainant became aware of Respondent's registration and use of the disputed domain, its legal representatives sent the domain holder a cease and desist letter, which went ignored.
Although the disputed domain included the descriptive term "cereales" (meaning "cereals" in Spanish), the Panel held that this did not exclude the confusing similarity with Complainant's NESTLE trademark, which was incorporated in whole in the disputed domain. In addition, the evidence showing that Respondent used the domain name to host a "link farm", i.e. a list of sponsored links, was sufficient to determine that Respondent did not have any right or legitimate interest in the domain and had registered and used it in bad faith. Indeed, the Panel noted that the circumstances amounted to unduly taking advantage of the well-known nature of Complainant's mark to attract more Internet users and generate revenue presumably to Respondent's benefit in the form of pay-per-click.
As a further element evidencing Respondent's bad faith, the Panel noted that there was an attempt by Respondent to avoid submission to the UDRP proceeding, apparently by means of a privacy service. The initial Respondent as per the Complaint initially submitted was "PrivacyProtect.org" of the Netherlands, who had been involved in prior UDRP proceedings, all of them decided for the transfer of the disputed domain name. The WhoIs details of the disputed domain in this case were then changed to "Private Registration" of Panama and the Complainant chose to file an amendment to the Complaint. The Panel noted a change in the ownership of a domain name after a cease and desist letter has already been dispatched by a trademark owner is often an indication of bad faith, i.e. a way to create difficulties for a trademark owner to assert its rights in a UDRP proceeding. Similarly, a change in the WhoIs details is another evidence of bad faith. The Panel ordered transfer of the disputed domain. Societe des Produits Nestle S.A. v. Private Registration, WIPO Case No. D2009-1021
