Brenntag Holding GmbH v. Domain Admin / Honey Salt Ltd.
Claim Number: FA2109001962136
Complainant is Brenntag Holding GmbH (“Complainant”), represented by Timothy D. Pecsenye of Blank Rome LLP, Pennsylvania, USA. Respondent is Domain Admin / Honey Salt Ltd. (“Respondent”), represented by Orrick Herrington & Sutcliffe LLP, Massachusetts, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <brenntag.sucks>, registered with Rebel Ltd.
The undersigned certifies that they have acted independently and impartially and to the best of their knowledge have no known conflict in serving as Panelists in this proceeding.
Mrs. Nathalie Dreyfus, Mr. Michael A. Albert, Mr. Christopher S. Gibson as Panelists.
Complainant submitted a Complaint to the Forum electronically on September 1, 2021; the Forum received payment on September 1, 2021.
On September 2, 2021, Rebel Ltd confirmed by e-mail to the Forum that the <brenntag.sucks> domain name is registered with Rebel Ltd and that Respondent is the current registrant of the name. Rebel Ltd has verified that Respondent is bound by the Rebel Ltd 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 September 8, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 4, 2021 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@brenntag.sucks. Also on September 8, 2021, 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.
A timely Response was received and determined to be complete on October 4, 2021.
On October 13, 2021 Complainant filed an Additional Submission following Respondent’s response. On October 14, 2021, Respondent filed an Additional Submission in response.
These Additional Submissions comply with Supplemental Rule 7 and the Panel, at its sole discretion, agrees to consider these unsolicited Additional Submissions.
On October 11, 2021, pursuant to Complainant's request to have the dispute decided by a three-member Panel, the Forum appointed Mrs. Nathalie Dreyfus, Mr. Michael A. Albert, Mr. Christopher S. Gibson as Panelists.
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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant is a global market leader in chemicals and ingredients distribution within the chemical industry and owns the U.S. federally registered trademarks BRENNTAG and Design, BRENNTAG, and BRENNTAG CONNECT (the “BRENNTAG” Marks) (See Compl. Ex. B) for use in connection with a variety of goods and services related to the chemicals.
Complainant asserts that the registration of the domain name <brenntag.sucks> by Respondent is confusingly similar to its prior rights as it incorporates the registered sign in its entirety and adds the “.suck” generic top-level domain (“gTLD”) at the end. In addition, Respondent has knowledge of Complainant’s BRENNTAG mark at the time of registration.
Complainant also argues that Respondent has no rights or legitimate interests in the <brenntag.sucks> domain name as Respondent is not commonly known by the disputed domain name nor has Respondent been licensed, authorized, or otherwise permitted by Complainant to use Complainant’s mark. Respondent’s use is not a bona fide offering of goods or services, nor a legitimate noncommercial or fair use, as Respondent is using the domain to post a misleading presentation of Complainant’s activities and unverifiable fake reviews and comments. Respondent also hosts on this website hyperlinks to similar “.sucks” pages.
Finally, Complainant asserts that Respondent registered and uses the <brenntag.sucks> domain name in bad faith. Complainant specifies that Respondent has been involved in numerous prior similar cases, which show that Respondent has an established pattern of bad faith registrations. Respondent is attempting to attract Internet users for commercial gain by operating a website with automatically generated criticism of Complainant.
B. Respondent
Respondent’s argues that <brenntag.sucks> domain name is not confusingly similar, as the negative term “sucks” prevents confusion. The gTLD <.sucks> has been put in place with the aim to facilitate criticism and free speech.
Respondent asserts that the domain name is used to provide a space to criticize Complainant. Respondent’s use of hyperlinks are there to assist Internet users to find other <.sucks> domain names. Respondent also argues that the use of the disputed domain name is not misleading and does not tarnish Complainant’s mark.
Respondent claims that an open offer regarding the domain name was available for Complainant to transfer it free of charge and that Complainant did not proceed with the transfer.
Finally, Respondent argues that he did not register and use the <brenntag.sucks> domain name in bad faith. Respondent is operating a legitimate and non-commercial criticism website that is clearly shown in the use of the <.sucks> gTLD. Furthermore, Respondent indicated that the prior UDRP cases cited by Complainant should not been taken into account as those cases contained procedural problems with Respondent’s evidence and citations being ignored when the outcomes where determined.
C. Additional Submissions
Complainant in its Additional Submission states that he was not aware of the open offer mentioned by Respondent in his response.
In addition, Complainant provides details regarding some prior UDRP cases where Respondent has been involved. In particular, Complainant asserts that Respondent’s argument that there were procedural problems or elements not considered by the prior panelists should not to be taken into account, since the panels in those cases considered the specifics of each case.
Respondent in its Additional Submission claims that the Additional Submission from Complainant should not be considered by the Panel.
Complainant has rights in the BRENNTAG mark.
Complainant’s rights in the BRENNTAG mark existed prior to Respondent’s registration of the disputed domain name.
Respondent uses the disputed domain name to resolve to a website displaying third-parties’ criticisms on 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.
Under Policy 4(a)(i), registration on the principal register of the USPTO is sufficient to demonstrate rights in a mark. Consequently, Complainant has rights in the BRENNTAG mark through its registration of the mark with the USPTO. See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy 4(a)(i).”).
Complainant argues that Respondent’s <brenntag.sucks> domain name is confusingly similar to Complainant’s mark as Respondent uses Complainant’s mark without any alteration and merely adds the <.sucks> gTLD to the mark. Such addition is generally not sufficient to distinguish a disputed domain name from the mark under the Policy, paragraph 4(a)(i), as has been confirmed in recent cases. See Marquette Golf Club v. Al Perkins, FA 1738263 (Forum July 27, 2017) (“When a respondent’s domain name incorporates a mark in its entirety and merely adds a generic top-level domain (gTLD), “.com”, then the Panel may find that the disputed domain name is identical to Complainant’s mark.”); see also Tupelo Honey Hospitality Corporation v. King, Reggie, FA 1732247 (Forum July 19, 2017) (“Addition of a gTLD is irrelevant where a mark has been fully incorporated into a domain name and the gTLD is the sole difference.”).
Respondent, however, argues that the addition of the extension <.sucks> is sufficient to avoid any likelihood of confusion with the trademark, as this TLD is a negative term and the extension was created in order to facilitate free speech.
As demontrated by Complainant in many prior UDRP cases involving <.sucks> domain names, panels have determined that domain names consisting of the trademark (without alteration) and the negative “.sucks” appendix are to be considered as confusingly similar. The trademark is the dominant element in each of these domain names, and the <.sucks> gTLD does not differentiate the domain name from the trademark. This approach can been seen applied even in the very early case, TPI Holdings, Inc. v. AFX Communications a/k/a AFX, WIPO Case No. D2000-1472, where the panel reasoned as follows:
“When an Internet user enters a trademark into [a] search engine and a ‘sucks’-formative domain name is returned as a search result, that user is likely to proceed to the site so identified because of interest or puzzlement created by association of the trademark and the pejorative term. The operator of the website identified by the ‘sucks’-formative domain name will have accomplished the objective of diverting the Internet user seeking the trademark holder’s website. Bad faith adoption of a trademark, including in a ‘sucks’-formative domain name, increases the likelihood of a finding of confusing similarity.”
Hence, as stated in section 1.13 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), “a domain name consisting of a trademark and a negative or pejorative term (such as <[trademark]sucks.com>, <[trademark]구려.com>, <[trademark]吸.com>, or even <trademark.sucks>) is considered confusingly similar to the complainant’s trademark for the purpose of satisfying standing under the first element. The merits of such cases, in particular as to any potential fair use, are typically decided under the second and third elements. Panels have thereby observed that permitting such standing avoids gaming scenarios whereby appending a “sucks variation” would potentially see such cases fall outside the reach of the UDRP.”
The Panel considers that the practice of disregarding the TLD in determining identity or confusing similarity has been consistently applied irrespective of the particular TLD (including with regard to “new” gTLDs); the ordinary meaning ascribed to a particular TLD does not impact assessment of the first element. In this regard, the Panel is not persuaded to ignore the overwhelming weight of prior jurisprudence concerning “identical or confusingly similar” under the first element.
Therefore, the Panel finds that Respondent’s <brenntag.sucks> domain name is confusingly similar to Complainant’s mark and therefore Complainant satisfies Policy 4(a)(i).
Under Policy paragraph 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of the disputed domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006).
The Panel finds that Complainant has made out a prima facie case, while Respondent has not adequately rebutted that case to demonstrate any rights or legitimate interests under paragraph 4(c)(ii) of the Policy, which provides that Respondent may establish rights or legitimate interests in a domain name by demonstrating that “Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.”
First, Respondent is not commonly known by the disputed domain name, nor has Respondent been licensed or authorized by Complainant to use Complainant’s mark.
Second, Respondent is not using the domain name for any bona fide offering of goods or services, nor for any legitimate noncommercial or fair use. To support fair use under the Policy, paragraph 4(c)(iii), Respondent’s criticism must be genuine and non-commercial. See Section 2.6.1 of the WIPO Overview 3.0. Moreover, section 2.6.2 provides the guidance that “Panels find that even a general right to legitimate criticism does not necessarily extend to registering or using a domain name identical to a trademark (i.e., <trademark.tld> (including typos))”. Here, even if the Panel were to assume that Respondent was entitled to offer legitimate criticism under the disputed domain name (where the second-level is identical to Complainant’s established BRENNTAG mark), the criticisms in this case are not legitimate and genuine good faith criticisms. Under the circumstances of the present case, the Panel is not satisfied that the website to which the domain name resolves represents an actual “gripe site” presenting a genuine and fair exercise of free speech rights. Instead, the reviews posted on the website apparently do not come from Respondent itself but from third parties who are not identified. Indeed, Respondent appears to be scraping content from third party websites and has not provided any evidence of authorization to do so (from those third parties). The Panel has observed that Respondent copies specific out-of-context negative commentaries, while excluding any positive comments from the same third-party sources, and does so without any providing evidence of third-party authorization, and most likely in violation of the rules of these sites.
Besides the fact that these practices potentially raise copyright and other legal concerns, they cannot fall under the legitimate fair use and/or free speech defense. Whereas Respondent “scrapes” criticisms from third-party websites and publishes them on its own website as if they were actual critical comments vis-à-vis Brenntag, Respondent’s practices are considered unfair, unbalanced, dishonest and are not interpretable as genuine “fair use”. This approach used by Respondent to developing content for its own site does not help to legitimatize Respondent’s use of the disputed domain name.
Thus, Respondent cannot invoke the free speech defense as it does not exercise any free speech rights itself. Rather, Respondent is a third party without any direct relationship to person or entity who can invoke rights of free speech, and further Respondent has taken the out-of-context critical comments (while ignoring any accompanying positive comments from the same source) in a manner that is prejudicial and calculated for tarnishment of Complainant’s mark (see Tetra Laval Holdings & Finance S.A. v. Privacy Hero Inc., Pat Honeysalt,and Honey Salt Ltd., WIPO Case No. D2020-3398).
In view of the above, the Panel finds, like previous panels, that unauthorized scraping and republishing of anonymous criticisms originally posted on unaffiliated third-party websites, exacerbated by taking those comments out of context and omitting any positive comments, is not genuine criticism or a valid exercise of free speech rights. See e.g. Association des Centres Distributeurs E. Leclerc – A.C.D. Lec. V. Privacy Hero Inc. / Honey Salt ltd, Pat Honeysalt, WIPO Case No. D2021-0186 (“Respondent is not genuinely exercising free speech rights, but is instead creating a platform that pretextually facilitates the speech of others.”)
Considering the above circumstances, the Panel finds, on the balance of probabilities, that Respondent has no rights or legitimate interests in respect of the disputed domain name and the requirement of paragraph 4(a)(ii) of the Policy is satisfied.
To fulfill the third requirement of the Policy, Complainant must prove that the disputed domain name was registered and is being used in bad faith.
It is undisputed that Respondent was aware of Complainant’s BRENNTAG trademarks and targeted those marks at the time of registration of the disputed domain name. In response to these facts, Respondent has failed to demonstrate that the registration of the disputed domain name was done in good faith.
It must be noted that the registration of the disputed domain name is not necessary for Respondent to provide its purported criticism of Complainant’s business. In the declaration of Pat Collins provided by Respondent, Respondent indicates that it “has numerous domain names under management with each domain name being utilized in the same manner: to direct users to a commentary and feedback page that references a particular cause, individual, brand, company or product that has information and reviews related to that company or product”. It is also mentioned that Respondent operates numerous webpages that exist and are located at “www.everything.sucks”. The Panel has confirmed that a search for “brenntag” performed on the webpage located at <everything.sucks> returns a webpage with all of the purported criticisms regarding Complainant (see https://everything.sucks/Brenntag). If these pages can be located on the website linked to the domain name <everything.sucks>, then the registration of the disputed domain name, which is comprised of Complainant’s BRENNTAG mark in its entirety (and without any alteration), is unnecessary to support Respondent’s purported rights to criticize.
WIPO Overview 3.0 clarifies that under the Policy, bad faith is “broadly understood to occur where a respondent takes unfair advantage of or otherwise abuses a complainant’s mark”. Here, the Panel determines, on the balance of the probabilities, that Respondent is taking unfair advantage of Complainant’s BRENNTAG mark by (i) targeting Complainant’s mark when registering the disputed domain name in order to develop its purported business model for a <.sucks> criticism site, and (ii) improperly scraping content from third-party sites, as discussed in detail above, to develop content for Respondent’s site. Furthermore, the Panel finds that Respondent is using the disputed domain name with the aim to increase traffic to its website and to all the other <.sucks> webpages that are accessible from the website configured at the disputed domain name. This increase of the traffic will also increase the value of the disputed domain name. As mentioned above, this bad faith strategy has been frequently used by Respondent in numerous prior cases decided against Respondent. In sum, the Panel considers that Respondent has taken unfair advantage of the Complainant’s trademarks by using the Domain Name in this way.
In addition, under the Policy, paragraph 4(b)(ii), being a party to prior UDRP cases that resulted in the transfer of the disputed domain name may be evidence of a pattern of bad faith. It appears that Respondent has been involved in 28 prior cases concerning the registration of <.sucks> domain names. These prior cases are sufficient to establish that Respondent has engaged in a pattern of bad faith conduct. See Sanofi v. Privacy Hero Inc. /Honey Salt ltd, pat honey salt, WIPO Case No. D2020-2836 (for the domain name <sanofi.sucks> “This pattern, established by the decisions cited above, further supports a finding of bad faith pursuant to paragraph 4(b)(ii) of the Policy, which provides that a ‘pattern of such conduct’ is evidence of bad faith”); see also Trivago N.V. v. Pat Honey Salt, Honey Salt ltd, WIPO Case No. D2021-0692 (“UDRP panels have held that establishing a pattern of bad faith conduct requires more than one, but as few as two instances of abusive domain name registration. A pattern of abuse has also been found where the respondent registers, simultaneously or otherwise, multiple trademark-abusive domain names corresponding to the distinct marks of individual brand owners (see section 3.1.2 of the WIPO Overview 3.0)”).
Therefore, in view of all of the above circumstances, the Panel considers that Respondent registered and is using the <brenntag.sucks> domain name in bad faith under Policy 4(b)(iv).
Having not established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <brenntag.sucks> domain name BE TRANSFERRED TO Complainant.
Mrs. Nathalie Dreyfus,
Mr. Christopher S. Gibson
Panelist
Dated: October 29, 2021
Mr. Michael A. Albert, concurring opinion:
I reach the same conclusion as my fellow-panelists, but for a different reason with respect to Element 1 (“identical or confusingly similar”).
I begin by noting that I agree in full with the majority’s analysis of Element 2 (legitimate rights and interests) and Element 3 (bad faith).
With regard to Element 1, I disagree that the disputed domain name is “confusingly similar” to complainant’s mark; but I would hold that they are “identical” as that term appears to be defined for purposes of decisions under the Policy.
As is by now well known among domain name panelists and participants in the Uniform Domain Name Dispute Resolution (“UDRP”) process, the first Element that a complainant must establish to prevail in a UDRP case is that the disputed domain name is either “identical” or “confusingly similar” to a mark in which the complainant has rights. In this case, as the majority of this Panel correctly notes, Complainant has established (through its trademark registrations and otherwise) that it owns rights in the BRENNTAG mark (the “Mark”). That leaves the question of whether the domain name <brenntag.sucks> is either identical or confusingly similar to the Mark.
Prior panels (including myself) have typically deemed the domain name to be analyzed to include the top-level domain (“TLD”) (here, “sucks”). In prior decisions, I have repeatedly held, as have most if not all other panelists, that generic TLDs (gTLDs) such as “com” or “net” and country-code TLDs such as “us” do not materially alter the impression created by the second-level domain, and accordingly can, as a practical matter, be disregarded when analyzing whether the marks are identical or confusingly similar.
Given the ubiquity of this assessment of commonly-used gTLDs, it is perhaps unsurprising that numerous panels have applied a similar logic to the TLD at issue here. But I question whether the same logic applies. If an average Internet user encounters a domain name such as <TRADEMARK.com>, the user may plausibly believe or assume that the domain name is owned by, or at least affiliated with, the owner of the trademark in question. In the case of domains under the “.sucks” TLD, however, the situation is different. Here, at least to any Internet user with a modicum of familiarity with the English language,[1] it would presumably be clear that no company would suggest that this derogatory term is applicable to itself or its own products or services. In other words, no such user would be confused, because no company would say that its own product “sucks.” Consequently, I struggle to see the basis for finding “confusing” similarity here. Unlike with most other TLDs, it seems to me that by authorizing the “.sucks” TLD, ICANN has carved out a sort of “free speech zone” on the Internet in which people can post their gripes – or locate gripes posted by others – about a company or its products or services, without creating the same risk of confusion that would ordinarily be associated with a second-level domain similar to the company’s trademark. It could be argued that uses of a trademark in such a context are nominative, i.e. that they necessarily name the company because they seek to provide information or opinion about that company. The “.sucks” portion of the domain name, under that perspective, effectively builds a disclaimer of affiliation into the domain name itself.
One possible response to the above argument is that the first Element under the policy should be liberally construed to give “standing” to companies to file complaints under the Policy if they have a strong case for a showing of bad faith. In this case, for example, my fellow-panelists make a strong case that the purported “gripes” on Respondent’s site were not its own but were scraped from the Internet (likely in violation of applicable rules or obligations). Nevertheless, the Policy does not authorize us to employ a sliding scale under which one of the Elements can be overlooked if a strong showing is made on the others. Rather, each Element needs to be met. The reason for this is simple: The Policy is not a roving mandate to clean up the Internet of all charlatans, quacks, or purveyors of misinformation. If it were, we would have our work cut out for us. Rather, the Policy is intended to address one very specific impropriety on the Internet, namely causing Internet users to be confused into thinking that they have landed on a web site owned or authorized by a trademark owner when they have not.
A second possible response is that, as the majority of this Panel correctly notes, WIPO Overview 3.0 indicates that "typically" Panels in "sucks" cases find for Complainant on Element 1 and turn to Elements 2 and 3 to decide the merits of the case. But WIPO Overview 3.0 is not itself law or authority that governs our decision, but rather provides Panelists with a convenient summary of majority and minority views on various subjects. In Section 1.13, in fact, the Overview provides a list of cases, most of which transfer the domain name but some of which do not. The burden remains on each Panel to interpret the Policy and apply it to individual cases to the best of their ability, whether or not that is consistent with a majority of prior panels. (For panelists who practice in common-law jurisdictions, such as the United States, the notion that prior decisions create persuasive if not binding precedent is appealing; but it does not appear that the Policy was intended to create a common-law system in which precedent would constitute authority, but rather that each administrative proceeding under the Policy stands on its own.)
In view of the above analysis, I disagree that the Mark and the disputed domain name are “confusingly similar.” That, however, does not end our inquiry as to Element 1. There is also the question of whether the Mark is “identical” to a domain name being used by Respondent. As I read the Policy and Rules, it is. Of course, the Mark is not literally identical to the entirety of the domain name in dispute, including both the second-level domain name and the TLD taken together. But it is identical to the second-level domain name standing alone – which is a domain name being used by Respondent – and I would find that it is proper for us to make that assessment separately from an assessment of the domain name as a whole. Indeed, to conclude otherwise would vitiate the language of Policy Section 4(a)(i) which expressly contemplates the possibility that a Mark and a domain name can be “identical.” That language would have little or no application if the TLD always had to be included in the analysis (unless the mark in question happened to contain a dot and a TLD at the end of it, which is rare).
In the Domain Name System hierarchy, the top-level domain has a name (e.g. “com” or, here, “sucks”). The second-level domain has a name as well. And the domain name as a whole exists as a concatenation of each of these names, separated by dots. In much the same way, for example, while the full name of the inventor of the World Wide Web is “Timothy Berners-Lee” it is also true that his name is “Timothy.” A first name is a name, as is a last name, as is the concatenation of the two. Likewise, a second-level domain name is itself a name. As ICANN explained in a web page discussing the roll-out of the new gTLDs: “The portion of the domain name that precedes the top-level domain is called the second-level domain name (for example, the "icann" in "icann.org"). See https://newgtlds.icann.org/en/applicants/global-support/faqs/faqs-en, Section 8.4 (emphasis added). Indeed, the WIPO Overview 3.0 cited by the majority in its decision supports such an interpretation. For example, in Sec. 2.6.2, it provides <trademark.tld> as an example of “a domain name identical to a trademark." And in Section 2.7.2, it again suggests that “<trademark.tld>” constitutes a domain name “identical to a trademark.” While, as I have noted above, the Overview does not constitute authority, it does support my view that the Policy can fairly be read to intend by the term “identical” a comparison between the mark and the second-level domain name. Based on that comparison, the Mark and (second-level) domain name here are identical.
For the above reasons, I would conclude that Element 1 is met, under the “identical” rather than “confusingly similar” prong of Element 1. As noted above, I agree with my fellow panelists on Elements 2 and 3. I therefore join in their conclusion that the domain name should be TRANSFERRED to Complainant.
Mr. Michael A. Albert
Panelist (Concurring)
Dated: October 29, 2021
[1] Numerous Internet users around the world, of course, may be unfamiliar with English; but such users will then not be confused or misled by the content of Respondent’s web site, which appears to be entirely in English.
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