Chefs Collaborative v. Guest Choice Network
Claim Number: FA0111000102484
Complainant is Chefs Collaborative, Boston, MA (“Complainant”) represented by Devin W. Smith, of Nixon Peabody LLP. Respondent is Guest Choice Network, Washington, DC (“Respondent”).
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <chefscollaborative.info>, registered with Network Solutions.
The undersigned certifies that she has acted independently and impartially and that to the best of her knowledge she has no known conflict in serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on November 20, 2001; the Forum received a hard copy of the Complaint on November 26, 2001.
On November 26, 2001, Network Solutions confirmed by e-mail to the Forum that the domain name <chefscollaborative.info> is registered with Network Solutions and that Respondent is the current registrant of the name. Network Solutions has verified that Respondent is bound by the Network Solutions 5.0 registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On December 4, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of December 26, 2001 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts, and to email@example.com by e-mail.
Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the Forum transmitted to the parties a Notification of Respondent Default.
On January 3, 2002, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Carolyn Marks Johnson 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.” 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 makes the following allegations:
The <chefscollaborative.info> domain name is identical to Complainant's CHEF"S COLLABORATIVE mark. Respondent has no rights or legitimate interests in the disputed domain name. Respondent registered the disputed domain name in bad faith.
B. Respondent did not file a Response in this proceeding.
Since 1993, Complainant has used the CHEFS COLLABORATIVE mark in commerce in association with printed publications and educational services. In May 2001 Complainant filed an application with the United States Patent and Trademark Office for federal registration.
Complainant holds registration on the <chefscollaborative.com>, <chefscollaborative.net>, and <chefscollaborative.org> domain names.
Respondent registered the disputed domain name on October 5, 2001. Respondent is fully aware of the CHEFS COLLABORATIVE mark . Prior to its registration of the disputed domain name Respondent contacted Complainant to request information about Complainant. Respondent has not developed a website at the disputed domain name.
Prior to registration of the domain name Respondent repeatedly attacked Complainant for its views. Respondent has also attacked Complainant's members, motives and supporters. Complainant suspects that when Respondent's website goes active it will be used to tarnish Complainant's image and disrupt its business. Furthermore, Respondent has engaged in a pattern of registered domain names with the intention of depriving political opponents that own a mark from using that mark in a corresponding domain name.
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.”
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(e), 14(a) and 15(a) of the Rules.
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;
(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.
Complainant through continuous use in commerce has established common law rights in the CHEFS COLLABORATIVE mark. See Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which a Respondent operates. It is sufficient that a Complainant can demonstrate a mark in some jurisdiction); see also Great Plains Metromall, LLC v. Creach, FA 97044 (Nat. Arb. Forum May 18, 2001) (finding that the Uniform Domain Name Dispute Resolution Policy does not require “that a trademark be registered by a governmental authority for such rights to exist”).
Respondent's <chefscollaborative.info> domain name is identical to Complainant's mark because it incorporates the entirety of Complainant's mark and merely adds the top-level domain ".info". The addition of a top-level domain indicator such as ".info" does not create a distinctive mark capable of overcoming a claim of identical or confusing similarity.
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has established that it has common law rights to the mark contained in its entirety in the domain name registered by Respondent. Without filing a response, Respondent has failed to come forward with evidence that Respondent has such rights. The failure to respond permits the Panel to presume that Respondent has no rights or legitimate interests in the disputed domain name. See Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that Respondents’ failure to respond can be construed as an admission that they have no legitimate interest in the domain names).
Furthermore, when Respondent fails to submit a Response the Panel is permitted to make all inferences in favor of Complainant. See Talk City, Inc. v. Robertson, D2000-0009, (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint”).
There is no evidence on the record, and Respondent has not come forward to establish any, to show that Respondent is commonly known by the <chefscollaborative.info> domain name pursuant to Policy ¶ 4(c)(ii). See Broadcom Corp. v. Intellifone Corp., FA 96356 (Nat. Arb. Forum Feb. 5, 2001) (finding no rights or legitimate interests because Further, the facts permit the inference that Respondent is not commonly known by the disputed mark contained in its entirety in the disputed domain name.
Respondent also has not shown that it is using the disputed domain name in connection with a legitimate or fair use. See also CBS Broadcasting, Inc. v. LA-Twilight-Zone, D2000-0397 (WIPO June 19, 2000) (finding that Respondent has failed to demonstrate any rights or legitimate interests in the <twilight-zone.net> domain name since Complainant had been using the TWILIGHT ZONE mark since 1959). Respondent's use of a domain name identical to Complainant's mark to divert Internet users interested in Complainant to Respondent's website is not a bona fide offering of goods pursuant of Policy ¶ 4(c)(i). See Toronto-Dominion Bank v. Karpachev, D2000-1571 (WIPO Jan. 15, 2001) (finding no rights or legitimate interests where Respondent diverted Complainant’s customers to his websites); see also Vapor Blast Mfg. Co. v. R & S Tech., Inc., FA 96577 (Nat. Arb. Forum Feb. 27, 2001) (finding that Respondent’s commercial use of the domain name to confuse and divert Internet traffic is not a legitimate use of the domain name).
The use of Complainant's mark to attract Internet user's to Respondent's website is not a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Household Int’l, Inc. v. Cyntom Enter., FA 95784 (Nat. Arb. Forum Nov. 7, 2000) (inferring that Respondent registered the domain name <householdbank.com>, which incorporates Complainant’s HOUSEHOLD BANK mark, with hopes of attracting Complainant’s customers and thus finding no rights or legitimate interests); see also Big Dog Holdings, Inc. v. Day, FA 93554 (Nat. Arb. Forum Mar. 9, 2000) (finding no legitimate use when Respondent was diverting consumers to its own website by using Complainant’s trademarks).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Registration and Use in Bad Faith
Complainant urges that Respondent acted in bad faith in registering the domain name and in holding it passively.
The Panel is permitted to make the inference that Respondent registered the disputed domain name in order to disrupt Complainant's business, which is evidence of bad faith according to Policy ¶ 4(b)(iii). See EthnicGrocer.com, Inc. v. Unlimited Latin Flavors, Inc., FA 94385 (Nat. Arb. Forum July 7, 2000) (finding that the minor degree of variation from the Complainant's marks suggests that the Respondent, the Complainant’s competitor, registered the names primarily for the purpose of disrupting the Complainant's business).
The circumstances in this case permit the Panel to find that Respondent registered the disputed domain name in order to prevent Complainant from using its CHEFS COLLABORATIVE mark in another corresponding domain name. This behavior also is evidence of bad faith pursuant to Policy ¶ 4(b)(ii). See Toyota Jidosha Kabushiki Kaisha v. S&S Enter. Ltd., D2000-0802 (WIPO Sept. 9, 2000) (finding that “Registration of a domain name (by Respondent that incorporates another’s trademark) goes further than merely correctly using in an advertisement the trade mark of another in connection with that other’s goods or services: it prevents the trade mark owner from reflecting that mark in a corresponding domain name”).
The <chefscollaborative.info> domain name is identical to Complainant's mark and the Internet user will likely believe that there is an affiliation between Respondent and Complainant. Registration of the <chefscollaborative.info> domain name, which is identical to Complainant’s mark, is evidence of bad faith pursuant to Policy ¶ 4(b)(iv). See Sony Kabushiki Kaisha v. Inja, Kil, D2000-1409 (WIPO Dec. 9, 2000) (finding that bad faith registration and use where it is “inconceivable that the respondent could make any active use of the disputed domain names without creating a false impression of association with the Complainant”).
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that the requested relief shall be hereby granted.
Accordingly, it is Ordered that the domain name <chefscollaborative.info> be transferred from Respondent to Complainant.
Hon. Carolyn Marks Johnson, Panelist
Dated: January 16, 2002.
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