Kellogg North America Company v. james hoggins / freight
Claim Number: FA1909001863624
Complainant is Kellogg North America Company ("Complainant"), Michigan, USA. Respondent is james hoggins / freight ("Respondent"), Texas, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <kell0gg.com>, registered with Tucows Domains Inc..
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 24, 2019; the Forum received payment on September 24, 2019.
On September 24, 2019, Tucows Domains Inc. confirmed by email to the Forum that the <kell0gg.com> domain name is registered with Tucows Domains Inc. and that Respondent is the current registrant of the name. Tucows Domains Inc. has verified that Respondent is bound by the Tucows Domains 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 September 26, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 16, 2019 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@kell0gg.com. Also on September 26, 2019, the Written Notice of the Complaint, notifying Respondent of the email 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, the Forum transmitted to the parties a Notification of Respondent Default.
On October 18, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin as Panelist.
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. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules, and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant is a multinational food manufacturing company founded in 1906 with current annual sales in excess of $13 billion. Complainant owns several trademark registrations for KELLOGG'S in the United States and elsewhere, and contends that the mark has become famous as a result of longstanding use.
Respondent registered the disputed domain name <kell0gg.com> in February 2019 via a privacy registration service. Upon receiving notice of this proceeding, the registrar identified Respondent as the actual registrant of the domain name and disclosed Respondent's registration data. (That data includes the physical address of a large industrial contractor in Texas, a United Kingdom telephone number containing seven consecutive digits, and a disposable email address. The Panel is skeptical of its accuracy.)
Complainant describes the disputed domain name as a "typosquatted version" of its KELLOGG'S mark. The domain name redirects to a placeholder "under construction" page. Complainant states that it sent multiple cease and desist letters to Respondent (via the privacy registration service) but did not receive a response.
Complainant contends on the above grounds that the disputed domain name <kell0gg.com> is confusingly similar to its KELLOGG mark; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
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.
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 Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
The disputed domain name <kell0gg.com> corresponds to Complainant's registered KELLOGG'S trademark, omitting the apostrophe and letter "S," substituting the numeral zero for the letter "O," and appending the ".com" top-level domain. These alterations do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., Kellogg North America Co. v. Domain Admin, FA 1554903 (Forum June 3, 2014) (finding <kellog.com> confusingly similar to KELLOGG'S); Kellogg North America Co. v. RespectedResponse.org c/o Respected Responsse, FA 1552051 (Forum May 9, 2014) (finding <kelogg.com> identical or confusingly similar to KELLOGG'S); Toro Co. v. Dox Alim / Alim Lab, FA 1531691 (Forum Jan. 5, 2014) (finding <tor0.com> confusingly similar to TORO). The Panel considers the disputed domain name to be confusingly similar to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's registered mark without authorization, and there is no indication that Respondent has made any active use of the domain name. Use of a domain name for what is essentially a placeholder page lacking substantive content does not give rise to rights or legitimate interests under the Policy. See, e.g., State Farm Mutual Automobile Insurance Co. v. Registration Private, FA 1846160 (Forum July 1, 2019) ("website coming soon"); 24 Hour Fitness USA, Inc. v. Byung Kim / 24hourfitnessparamus, FA 1793620 (Forum July 24, 2018) ("under construction"); Full Swing Golf, Inc. v. Par-T-Golf, FA 102749 (Forum Jan. 8, 2002) ("under construction").
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(iv) of the Policy, bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent sought to conceal his identity by registering the disputed domain name through a privacy registration service, and the underlying registration data is dubious. The domain name is, as Complainant contends, a prototypical example of typosquatting. Furthermore, Respondent does not appear to have made any active use of the disputed domain name. In the absence of any explanation from Respondent, the Panel considers it reasonable to infer that Respondent registered the domain name intending to use it in a manner calculated to create and exploit confusion with Complainant's mark, likely by attracting Internet users seeking Complainant, and that Respondent is maintaining the domain name for that purpose. Indeed, given the fame of Complainant and its mark, it is difficult to conceive of any other plausible use. See Kellogg North America Co. v. Richard Harvey / Kellogg Co., FA 1752030 (Forum Nov. 16, 2017) ("Respondent registered and used the <kelloggscompany.org> to create confusion by using the KELLOGG'S mark because there is no plausible or good-faith logic to suggest otherwise."). The Panel finds that the disputed domain name was registered and is being used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <kell0gg.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: October 19, 2019
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