Kimberly Clark Worldwide Inc V/S Lin Yanxiao
The Complainant, Kimberly Clark Worldwide, Inc., is a registered proprietor of the trademark HUGGIES since 1976 in the US and since 1985 in India. It is a leading company in the tissues, diapers, personal and health care industry. The Complainant filed a complaint with the National Internet Exchange of India (NIXI) for recovery of the disputed domain name <www.huggies.in> registered by the Respondent, Lin Yanxiao as it incorporates the well-known and registered mark HUGGIES of the Complainant.
Contensions Raised By The Complainant
- Its various HUGGIES and HUGGIES trademarks are registered under the Trade Marks Act in India as well as in the US.
- They have acquired valuable goodwill and reputation under the trademark HUGGIES in relation to the goods and business of diapers, tissues and health care segments and the said trademark distinguishes the complainant’s products and business from its source and origin. The said trademark is therefore distinctive.
- The said trademark is well known, well established, well used and advertised in India since 1985 in the market.
- The term “HUGGIES” forms an integral part of the Complainant’s domain name- <www.huggies.com> that was registered on March 4, 1996 and <www.huggies.co.in> that was registered on October 7, 2007 and the complainant is the registrant of both the domain names.
- Consumers associate the term HUGGIES with that of the Complainant.
- The disputed domain name <www. huggies.in> is identical and similar to that of the registered trademark HUGGIES of the complainant, their registered domain names <www.huggies.com> and <www.huggies.co.in> and thus violates their rights.
- Adoption of disputed domain name shows the malafide intention of the Respondent to obtain illegal gains and trade upon the goodwill and reputation of the Complainant’s registered trademark HUGGIES and related domain name.
- Respondent has illegally adopted the disputed trademark to mislead the online visitors and public into believing that the domain name belongs to the Complainant or is associated with them.
- Respondent is also advertising the goods of the direct competitors of Complainant on the disputed domain name with malafide intention of disrupting the goodwill and reputation of Complainant’s mark. Therefore, Respondent is using the disputed domain name in bad faith and they have no legitimate rights and interests therein.
Discussion And Findings
The Arbitrator, while deciding the matter, made the following observations:
- The disputed domain name <www.huggies.in> bears the complainant’s registered trade mark HUGGIES as an essential and memorable feature that would be remembered by the general internet users. An average consumer would believe that there is a nexus between the Complainant and the Respondent or of the disputed name.
- The consumers would also believe that the disputed domain name is sponsored, licensed or affiliated to that of the trademark of the Complainant or is an extension of the Complainant’s business. Therefore, there is complete similarity/ identity between the complainant’s trademark HUGGIES and the disputed domain name.
- The disputed domain name of the Respondent bearing the identical registered trademark HUGGIES of the complainant is a violation of Complainant’s rights of the Trade Marks Act, 1999. The Respondent’s acts are without leave and license. Therefore, such acts are considered to be a legal wrong. The Complainant would have no control over the quality of goods and services provided by the Respondent.
- Respondent is commercially carrying out unauthorized advertisements and sale of HUGGIES products. The acts of the Respondent would tarnish the business and diminish, erode and eclipse the distinctiveness of the registered trademark HUGGIES of the Complainant’s. Therefore, adoption of the disputed domain name is actuated in bad faith, malafide and fraud.
- The Respondent are also guilty of cyber piracy and cybersquatting.
- Wrongs of Respondent are apparent from the fact that it has not traversed nor challenged the Complainant’s facts. The motive of Respondent was to derive unjust benefit from the registered trademark HUGGIES of complainant.
Decisions Of The Nixi Arbitrator
In light of all of the above facts and circumstances in the matter, the Arbitrator allowed the complaint directing that the Respondent’s domain name <www.huggies.in> be transferred to the Complainant.
Cases cited by Arbitrator
1. Montari Overseas Ltd. vs Montari Industries Ltd.
Similarity in addition to being qualified as deception it also acts as evidence of bad faith and malafide intention on part of Respondent to gain illegal monetary benefits.
2. Lt. Food Limited vs Sulson Overseas Pvt. Ltd
Disputed domain name bearing identical registered trade mark of Complainant would be in complete violation of the said registered trade mark of Complainant (Section 29 of Trade Mark Act, 1999).
3. GramaxPlasticulture Limited vs Don and Low Nonwovens Limited
Bad faith has been defined to include dishonesty and dealings which fall short of the standards of acceptable commercial behaviors observed by reasonable and experienced men in particular area being examined.