Sensient Technologies Corporation v. Anne Cochran
Claim Number: FA0801001126163
Complainant is Sensient Technologies Corporation (“Complainant”), represented by Lori
S. Meddings, of Michael Best & Friedrich LLP.,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <sensiant.com>, registered with Names4Ever, Http://www.Names4Ever.com.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On January 4, 2008, Names4Ever, Http://www.Names4Ever.com confirmed by e-mail to the National Arbitration Forum that the <sensiant.com> domain name is registered with Names4Ever, Http://Www.Names4Ever.com and that Respondent is the current registrant of the name. Names4Ever, Http://Www.Names4Ever.com has verified that Respondent is bound by the Names4Ever, Http://Www.Names4Ever.com 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 January 15, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of February 4, 2008 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 postmaster@sensiant.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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 National Arbitration 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 assertions:
1. Respondent’s <sensiant.com> domain name is confusingly similar to Complainant’s SENSIENT mark.
2. Respondent does not have any rights or legitimate interests in the <sensiant.com> domain name.
3. Respondent registered and used the <sensiant.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Sensient Technologies Corporation, develops, manufactures, and markets colors, flavors, and
fragrances. These products are used in
the food and beverage, pharmaceutical, cosmetic, and personal and home care
industries. Complainant has marketed its
products under the SENSIENT mark since 2000.
Complainant filed for registration of the SENSIENT mark with the United
States Patent and Trademark Office (“USPTO”) on
Respondent registered the <sensiant.com>
domain name on
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 and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also 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.”).
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.
Complainant filed for registration of the SENSIENT mark with
the USPTO prior to Respondent’s registration of the disputed domain name. Although the SENSIENT mark was not registered
until 2005, the filing date determines the creation of rights to the mark under
Policy ¶ 4(a)(i).
The Panel finds that Complainant has rights to the mark under Policy ¶
4(a)(i) because Complainant’s date of filing with the
USPTO precedes Respondent’s registration of the <sensiant.com> domain name. See Phoenix Mortgage Corp. v. Toggas,
D2001-0101 (WIPO
The <sensiant.com>
domain name differs from Complainant’s SENSIENT mark by one letter. Respondent has replaced the second “e” in
Complainant’s mark with an “a.” In Belkin Components v. Gallant, FA 97075 (Nat. Arb.
Forum May 29, 2001), the panel concluded that replacing the letter “i” in
complainant’s mark with an “e” did not distinguish the disputed domain name
from the complainant’s mark. Similarly,
in this case, only one letter is different.
Moreover, the addition of the generic top-level domain (“gTLD”) “.com”
has no distinguishing effect since all domain names are required to have a
top-level domain. As a result, the Panel
finds that the <sensiant.com> domain name is confusingly similar to
Complainant’s SENSIENT mark under Policy ¶ 4(a)(i). See Nev. State Bank v.
Modern Ltd. – Cayman Web Dev.,
FA 204063 (Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant asserts that Respondent lacks both rights and legitimate interests in the <sensiant.com> domain name. The Panel finds that Complainant has made a prima facie case, and the burden shifts to Respondent to demonstrate that it does have rights and legitimate interests under Policy ¶ 4(a)(ii). See Woolworths plc. v. Anderson, D2000-1113 (WIPO Oct. 10, 2000) (finding that, absent evidence of preparation to use the domain name for a legitimate purpose, the burden of proof lies with the respondent to demonstrate that it has rights or legitimate interests); see also Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“Proving that the Respondent has no rights or legitimate interests in respect of the Domain Name requires the Complainant to prove a negative. For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”).
By
failing to respond to the Complaint, Respondent has not supplied the Panel with
any basis for finding rights or legitimate interests in the disputed domain
name. Consequently, the Panel infers
that Respondent lacks all rights and legitimate interests in the <sensiant.com> domain name under Policy ¶ 4(a)(ii). See Talk City, Inc. v. Robertson, D2000-0009
(WIPO Feb. 29, 2000) (“Given Respondent’s failure to submit a substantive
answer in a timely fashion, the Panel accepts as true all of the allegations of
the complaint.”); see also Vanguard Group, Inc. v. Collazo,
FA 349074 (Nat. Arb. Forum
Respondent
previously used the disputed domain name to redirect Internet users to the <sensiant.com> domain name, where
Internet users can register domain names.
Simply redirecting
Internet users to an unrelated website cannot establish a legitimate use.
This website is completely unrelated to Complainant’s business, and does not represent a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Seiko Kabushiki Kaisha v. CS into Tech, FA 198795 (Nat. Arb. Forum Dec. 6, 2003) (“Diverting customers, who are looking for products relating to the famous SEIKO mark, to a website unrelated to the mark is not a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor does it represent a noncommercial or fair use under Policy ¶ 4(c)(iii).”); see also Golden Bear Int’l, Inc. v. Kangdeock-ho, FA 190644 (Nat. Arb. Forum Oct. 17, 2003) (“Respondent's use of a domain name confusingly similar to Complainant’s mark to divert Internet users to websites unrelated to Complainant's business does not represent a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”).
The
disputed domain name does not currently resolve to an active website. In Pharmacia
& Upjohn AB v. Romero, D2000-1273 (WIPO
The
spelling of the disputed domain name and Respondent’s previous use suggests
that Respondent is engaging in “typosquatting,” and attempting to draw Internet
users to its website by capitalizing on simple spelling mistakes. The Panel concludes that such use does not
qualify as a bona fide offering of goods or services under Policy ¶ 4(c)(i), or as a legitimate noncommercial or fair use under
Policy ¶ 4(c)(iii). See
IndyMac Bank F.S.B. v. Ebeyer, FA 175292 (Nat. Arb.
Forum Sept. 19, 2003) (finding that the respondent lacked rights and legitimate
interests in the disputed domain names because it “engaged in the
practice of typosquatting by taking advantage of Internet users who attempt to
access Complainant's <indymac.com> website but mistakenly misspell
Complainant's mark by typing the letter ‘x’ instead of the letter ‘c’”); see also LTD Commodities LLC v. Party Night, Inc., FA 165155 (Nat. Arb. Forum
Finally, Complainant contends that it has not authorized
Respondent to use the SENSIENT mark and that Respondent has never requested
authorization. The
Panel in
The Panel finds that Policy ¶ 4(a)(ii)
has been satisfied.
The
disputed domain name does not currently resolve to an active website. The panel in DCI
Previously, Respondent was using the disputed domain name to
redirect Internet users to an unrelated website where domain names could be
registered. Complainant contends that
Respondent was commercially benefiting from redirecting Internet users, and was
benefiting was the similarity between the SENSIENT mark and the <sensiant.com> domain name. Complainant further contends that
Respondent’s use was capable of creating confusion as to the source,
sponsorship, affiliation or endorsement of the website where Internet users
where redirected. Thus, the Panel finds
that Respondent’s previous use was evidence of registration and use in bad
faith under Policy ¶ 4(b)(iv). See
State Farm Mut. Auto. Ins. Co. v. Northway, FA 95464 (Nat. Arb. Forum Oct.
11, 2000) (finding that the respondent registered the domain name
<statefarmnews.com> in bad faith because the respondent intended to use
the complainant’s marks to attract the public to the web site without
permission from the complainant); see also Kmart v. Khan, FA
127708 (Nat. Arb. Forum Nov. 22, 2002) (finding that if the respondent profits
from its diversionary use of the complainant's mark when the domain name
resolves to commercial websites and the respondent fails to contest the
complaint, it may be concluded that the respondent is using the domain name in
bad faith pursuant to Policy ¶ 4(b)(iv)).
Furthermore, Respondent’s use of the disputed domain name indicates “typosqatting,” and is therefore evidence of registration and use in bad faith under Policy ¶ 4(a)(iii). See Dermalogica, Inc. v. Domains to Develop, FA 175201 (Nat. Arb. Forum Sept. 22, 2003) (finding that the <dermatalogica.com> domain name was a “simple misspelling” of the complainant's DERMALOGICA mark which indicated typosquatting and bad faith pursuant to Policy 4 ¶ (a)(iii)); see also K.R. USA, INC. v. SO SO DOMAINS, FA 180624 (Nat. Arb. Forum Sept. 18, 2003) (finding that the respondent’s registration and use of the <philadelphiaenquirer.com> and <tallahassedemocrat.com> domain names capitalized on the typographical error of Internet users seeking the complainant's THE PHILADELPHIA INQUIRER and TALLAHASSEE DEMOCRAT marks, evincing typosquatting and bad faith pursuant to Policy ¶ 4(a)(iii)).
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 relief shall be GRANTED.
Accordingly, it is Ordered that the <sensiant.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: February 28, 2008
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page
National
Arbitration Forum