McKee Foods Kingman, Inc. v. Frank Bollinger c/o FB Modeling
Claim Number: FA0802001143799
Complainant is McKee Foods Kingman, Inc. (“Complainant”), represented by Maury
M. Tepper, of Womble Carlyle Sandridge & Rice, PLLC,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <littledebbie.info>, registered with Spot Domain.
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.
Honorable Paul A. Dorf (Ret.) as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On February 14, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 5, 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@littledebbie.info 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 <littledebbie.info> domain name is identical to Complainant’s LITTLE DEBBIE mark.
2. Respondent does not have any rights or legitimate interests in the <littledebbie.info> domain name.
3. Respondent registered and used the <littledebbie.info> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, McKee Foods Kingman, Inc.,
has used the LITTLE DEBBIE mark in connection with the manufacturing and
distributing of high-quality family snack products. Complainant owns a number of federal
trademark registrations with the United States Patent and Trademark Office
(“USPTO”) (i.e. Reg. No. 967,756 issued
Respondent registered the <littledebbie.info> 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.
Registration with the USPTO establishes rights in
Complainant’s LITTLE DEBBIE mark pursuant to Policy ¶ 4(a)(i). See
Janus Int’l Holding Co. v. Rademacher,
D2002-0201 (WIPO Mar. 5, 2002) ("Panel decisions have held that
registration of a mark is prima facie evidence
of validity, which creates a rebuttable presumption that the mark is inherently
distinctive."); see also Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum
Complainant contends that Respondent’s <littledebbie.info> domain name is identical to
Complainant’s LITTLE DEBBIE mark.
Respondent’s disputed domain name contains Complainant’s mark, removes
the space and adds the generic top-level domain (“gTLD”) “.info.” The Panel finds that a removed spacing and the
addition of a gTLD are irrelevant in distinguishing a disputed domain name from
a complainant’s mark. See Blue Sky Software Corp. v.
Digital Sierra, Inc., D2000-0165 (WIPO
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant contends that Respondent lacks all rights and legitimate interests in the <littledebbie.info> domain name. When a complainant makes a prima facie case in support of its allegations, the burden shifts to the respondent to prove that it does have rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). The Panel holds that in this case, Complainant has established a prima facie case. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that once the complainant asserts that the respondent has no rights or legitimate interests with respect to the domain, the burden shifts to the respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”); see also Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under certain circumstances, the mere assertion by the complainant that the respondent has no right or legitimate interest is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist).
Due to Respondent’s failure to respond to the Complaint, the
Panel may assume that Respondent does not have rights or legitimate interests
in the disputed domain name. See Broadcom Corp. v.
Ibecom PLC, FA 361190 (Nat. Arb. Forum
Complainant asserts that Respondent is neither commonly
known by the <littledebbie.info> domain name, nor licensed to
register domain names using the LITTLE DEBBIE mark. The Respondent’s WHOIS information identifies
Respondent as “Frank Bollinger c/o FB Modeling,” which provides no affirmative
evidence that Respondent is commonly known by the disputed domain name. Therefore, the Panel finds that Respondent is
not commonly known by the disputed domain name pursuant to Policy ¶
4(c)(ii). See Gallup, Inc. v. Amish
Country Store, FA 96209 (Nat. Arb. Forum
Complainant contends that Respondent is using the <littledebbie.info> domain name to divert Internet users to the associated website in order to promote adult-oriented materials. The Panel finds that intentionally diverting unknowing Internet users to a website offering adult-oriented materials is neither a bona fide offering of good and services pursuant to Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Isleworth Land Co. v. Lost In Space, SA, FA 117330 (Nat. Arb. Forum Sept. 27, 2002) (finding that the respondent’s use of its domain name to link unsuspecting Internet traffic to an adult orientated website, containing images of scantily clad women in provocative poses, did not constitute a connection with a bona fide offering of goods or services or a noncommercial or fair use); see also Target Brands, Inc. v. Bealo Group S.A., FA 128684 (Nat. Arb. Forum Dec. 17, 2002) (finding that use of the <targetstore.net> domain name to redirect Internet users to an adult oriented website did not equate to a bona fide offering of goods or services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use of a domain name under Policy ¶ 4(c)(iii)).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
The Panel finds that Respondent’s use of the <littledebbie.info> domain name to divert unknowing Internet users the associated website offering adult-oriented materials is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Wells Fargo & Co. v. Party Night Inc., FA 144647 (Nat. Arb. Forum Mar. 18, 2003) (finding that the respondent’s tarnishing use of the disputed domain names to redirect Internet users to adult-oriented websites was evidence that the domain names were being used in bad faith); see also Six Continents Hotels, Inc. v. Nowak, D2003-0022 (WIPO Mar. 4, 2003) (“[W]hatever the motivation of Respondent, the diversion of the domain name to an adult oriented site is itself certainly consistent with the finding that the Domain Name was registered and is being used in bad faith.”).
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 <littledebbie.info> domain name be TRANSFERRED from Respondent to Complainant.
Honorable Paul A. Dorf (Ret.), Panelist
Dated: March 24, 2008
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page
National
Arbitration Forum