DECISION

 

The Procter & Gamble Company v. Shi Lei / wojciech drewniak

Claim Number: FA2404002095179

 

PARTIES

Complainant is The Procter & Gamble Company ("Complainant"), represented by Jocelyn C. Smith of UB Greensfelder, LLP, Ohio, USA. Respondent is Shi Lei / wojciech drewniak ("Respondent"), International.

 

REGISTRAR AND DISPUTED DOMAIN NAMES 

The domain names listed in the complaint are <pggodeveryday.com> and <coupontide.com>, registered with Dynadot Inc.

 

For the reasons given below, the Panel finds that the only relevant domain name for this case is <coupontide.com>.

 

PANEL

The undersigned certifies that they have acted independently and impartially and to the best of their knowledge have no known conflict in serving as Panelist in this proceeding.

 

Richard Hill as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on April 26, 2024; Forum received payment on April 26, 2024.

 

On April 29, 2024, Dynadot Inc confirmed by e-mail to Forum that the <pggodeveryday.com> and <coupontide.com> domain names are registered with Dynadot Inc and that Respondent is the current registrant of the names. Dynadot Inc has verified that Respondent is bound by the Dynadot Inc 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 April 30, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 20, 2024 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@pggodeveryday.com and postmaster@coupontide.com. Also on April 30, 2024, 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, Forum transmitted to the parties a Notification of Respondent Default.

 

On May 21, 2024, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Richard Hill as Panelist.

 

Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.

 

RELIEF SOUGHT

Complainant requests that the domain names be transferred from Respondent to Complainant.

 

PRELIMINARY ISSUE: MULTIPLE RESPONDENTS

In the instant proceedings, Complainant has alleged that the entities which control the domain names at issue are effectively controlled by the same person and/or entity, which is operating under several aliases. In support of this allegation it states:

a)       Respondents are using the same privacy service;

b)       Respondents target a specific sector offered by Complainant. Respondents use Complainant's trademarks focused on providing coupons and incentives and awards under one domain <PGgoDeveryDay.com> and then uses Complainant's other trademarks, but adding the term "coupon" to the domain name <CouponTide.com>, knowing that consumers expect Complainant to offer coupons and other rewards in association with both brands.

Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") provides that a "complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder."  

 

The Panel finds that allegation (a) above does not necessarily indicate that the domain names are under common control. Allegation (b) it contradicted by the evidence set forth by Complainant, which shows that both domain names are not being used.

 

Thus the Panel finds that Complainant has not presented sufficient evidence to find that both disputed domain names were registered by the same person or entity.

 

Under the Forum's Supplemental Rule 4(c), the Panel must determine which domain names are commonly owned and elect which Respondent to proceed against, as a UDRP decision can proceed against only one Respondent. The Panel is then required to dismiss the Complaint in relation to the domain names not commonly owned by the chosen Respondent. 

 

Accordingly, the Panel will rule only on the <coupontide.com> domain name, and it will dismiss, without prejudice, the complaint regarding the <pggodeveryday.com> domain name. See Brian Renner v. Contactprivacy.com, FA 1335211 (Forum Aug. 26, 2010); see also Amazon Technologies, Inc. v. M M / shanwang chen / feifei lin / HUA ZHANG / L H / Eddie Nash / Heather Brooker, FA 1973471 (Forum Dec. 17, 2021).

 

PARTIES' CONTENTIONS

A. Complainant

Complainant states that it has been in the business of making and selling consumer goods items and related services in the fields of baby care, fabric care, family care, feminine care, grooming, hair care, home care, oral care, personal health care, and skin care since at least 1837. To this day, Complainant remains an innovative and famous brand, offering unique products and services, and prides itself in providing a safe, enjoyable, and secure product purchasing and shopping experience. Complainant has developed and promoted its coupon and incentive-award programs under it well-known P&G GOOD EVERYDAY trademarks and brand name and its household-cleaning products under its TIDE trademark and brand name for numerous years. Complainant asserts rights in the mark TIDE through its registration in the United States in and 1946. The mark is famous.

 

Complainant alleges that the disputed domain name is confusingly similar to its TIDE mark because it incorporates the mark in its entirety and merely adds the generic/descriptive term "coupon" together with the ".com" generic top-level domain ("gTLD").

 

According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name. Respondent is neither commonly known by the disputed domain name nor has Complainant authorized Respondent to use its mark. Respondent is not using the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial fair use. Instead, the disputed domain name is not being used.

 

Further, says Complainant, Respondent has registered and is using the disputed domain name in bad faith. The disputed domain name is not being used.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant owns the mark TIDE and uses it to market cleaning products around the world. The mark is well known.

 

Complainant's rights in its marks date back to 1946.

 

The disputed domain name was registered in 2017.

 

Complainant has not licensed or otherwise authorized Respondent to use its marks.

 

The disputed domain name is not being used.

 

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted and 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").

 

Identical and/or Confusingly Similar

The disputed domain name incorporates Complainant's TIDE mark in its entirety, merely adding the generic/descriptive term "coupon", and the ".com" gTLD. Under Policy ¶ 4(a)(i), such changes are generally insufficient in differentiating a disputed domain name from the mark it incorporates. See Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) ("Where a relevant trademark is recognisable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element."); see also Vanguard Group Inc. v. Proven Fin. Solutions, FA 572937 (Forum Nov. 18, 2005) (holding that the addition of both the word "advisors" and the gTLD ".com" did not sufficiently alter the disputed domain name to negate a finding of confusing similarity under Policy ¶ 4(a)(i)). Therefore, the Panel finds that the disputed domain name is confusingly similar to Complainant's mark under Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

Complainant has not licensed or otherwise authorized Respondent to use its mark in any way. Respondent is not commonly known by the disputed domain name: under Policy ¶ 4(c)(ii), WHOIS information can support a finding that a respondent is not commonly known by the disputed domain name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA 1574905 (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 the registrant as "wojciech drewniak". The Panel therefore finds under Policy ¶ 4(c)(ii) that Respondent is not commonly known by the disputed domain name.

 

The disputed domain name is not being used. Failure to make an active use of a domain name demonstrates that Respondent is not using the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Bloomberg L.P. v. SC Media Servs. & Info. SRL, FA 296583 (Forum Sept. 2, 2004) ("Respondent is wholly appropriating Complainant's mark and is not using the <bloomberg.ro> domain name in connection with an active website. The Panel finds that the [failure to make an active use] of a domain name that is identical to Complainant's mark is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii)."). Therefore, the Panel finds that Respondent is not using the disputed domain name to make 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). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.

 

Registration and Use in Bad Faith

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 disputed domain name is not being used. According to paragraph 3.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (WIPO Jurisprudential Overview 3.0): "From the inception of the UDRP, panelists have found that the non-use of a domain name (including a blank or "coming soon" page) would not prevent a finding of bad faith under the doctrine of passive holding. While panelists will look at the totality of the circumstances in each case, factors that have been considered relevant in applying the passive holding doctrine include: (i) the degree of distinctiveness or reputation of the complainant's mark, (ii) the failure of the respondent to submit a response or to provide any evidence of actual or contemplated good-faith use, (iii) the respondent's concealing its identity or use of false contact details (noted to be in breach of its registration agreement), and (iv) the implausibility of any good faith use to which the domain name may be put."

 

In the present case, Complainant's trademark is well known. It is difficult to envisage any use of the disputed domain name that would not violate the Policy, see Morgan Stanley v. TONY / shentony, FA 1637186 (Forum Oct. 10, 2015) ("Respondent registered the disputed domain name [MORGANSTANLEY.ONLINE] in bad faith because . . . it is difficult to envisage any use of the disputed domain name that would not violate the Policy"); see also Singapore Airlines Ltd. v. European Travel Network, D2000-0641 (WIPO Aug. 29, 2000) (where selection of disputed domain name is so obviously connected to complainant's well-known trademark, use by someone with no connection with complainant suggests opportunistic bad faith); see also Starwood Hotels & Resorts Worldwide, Inc., Sheraton Int'l IP, LLC, Westin Hotel Mgmt., L.P. v. Jingjing Tang, D2014-1040 (WIPO Aug. 19, 2014) ("The Panel finds that the [WESTIN] Marks are not such that could legitimately be adopted by traders other than for the purpose of creating an impression of an association with Complainant. Thus, the Panel concludes that the disputed domain names were registered in bad faith.").

 

There has been no response to the Complaint and Respondent used a privacy service, that is, it attempted to conceal its identity. Given these circumstances, the Panel finds that, in this particular case, a finding of bad faith use can be inferred even though the disputed domain name is not being actively used. See Telstra Corporation Limited v. Nuclear Marshmallows, D2000-0003 (WIPO Feb. 18, 2000).

 

DECISION

The Panel dismisses, without prejudice, the Complaint against the <pggodeveryday.com> domain name.

 

Having established all three elements required under the ICANN Policy for the <coupontide.com> domain name, the Panel concludes that relief shall be GRANTED for that domain name.

 

Accordingly, it is Ordered that the <coupontide.com> domain name be TRANSFERRED from Respondent to Complainant and that the <pggodeveryday.com> domain name REMAIN WITH Respondent.

 

 

 

Richard Hill, Panelist

Dated: May 21, 2024

 

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