THURSDAY, 14 MAY 2009
Actimel vs Actimelon
Danone succeeded in having the domain name ‘actimelon.com’ trasnferred to it following the decision of WIPO’s panel in case D2009 0221.
The respondent, a US based legal entity registered the said domain name and used the relevant website as a “parking page” containing sponsored links, many of which relate to products competing with the Complainant’s ACTIMEL product. Danone relied on its trademark rights in various countries in and to ACTIMEL used to distinguish a probiotic drinking yogurt with a significan sales volume globally, as well as to registration of a number of domain names containing “actimel” as the second level domain. Prior to resorting to WIPO, Danone also sent cease and desist letters to the Respondent to no avail. The sole panelist Johnathan Turner accepted the complaint, ruling as follows:
A. Identical or Confusingly Similar
.............. The Panel does not accept the Complainant’s submission that the Domain Name should be regarded as comprising the Complainant’s mark together with the common English word “on” and the generic top level domain suffix. In the Panel’s view, Internet users would be unlikely to split the second level domain in their minds in this way. However, the Panel does find that the overall similarity between the Domain Name and the Complainant’s mark is likely to cause confusion, particularly bearing in mind the possibility of imperfect recollection [sounds familiar?].
B. Rights or Legitimate Interests
The Panel finds that the Domain Name is directed to a parking page containing sponsored links, many of which connect to websites promoting products competing with the Complainant’s ACTIMEL product. In the Panel’s view, this use of the Domain Name does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use of the Domain Name.
C. Registered and Used in Bad Faith
The Panel notes that the Respondent’s name indicates its interest in medical nutrition products. Given this interest, the Panel considers that the Respondent must have been aware at all relevant times of the Complainant’s use of the mark ACTIMEL for its very extensively sold probiotic yogurt. As stated above, the Domain Name is directed to a web page of sponsored links, many of which relate to products competing with the Complainant’s ACTIMEL product. The Panel finds that by using the Domain Name in this way, the Respondent has intentionally attempted to attract Internet users to its web page by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of its web page, for commercial gain in the form of click through commissions.
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