Darden Restaurants, Inc. v. Technology Solutions
Claim Number: FA0808001221729
Complainant is Darden Restaurants, Inc. (“Complainant”), represented by Chloe
A. Hecht, of Ladas & Parry, Didital Brands
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <neverendingpastabowl.com>, registered with Godaddy.com, 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.
Honorable Karl V. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on August 22, 2008; the National Arbitration Forum received a hard copy of the Complaint on August 22, 2008.
On August 25, 2008, Godaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <neverendingpastabowl.com> domain name is registered with Godaddy.com, Inc. and that Respondent is the current registrant of the name. Godaddy.com, Inc. has verified that Respondent is bound by the Godaddy.com, Inc. 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 August 28, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 17, 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@neverendingpastabowl.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On September 24, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Karl V. Fink (Ret.) as Panelist.
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 <neverendingpastabowl.com> domain name is identical to Complainant’s NEVER ENDING PASA BOWL mark.
2. Respondent does not have any rights or legitimate interests in the <neverendingpastabowl.com> domain name.
3. Respondent registered and used the <neverendingpastabowl.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Darden Restaurants, Inc., owns several restaurant chains including the Olive Garden chain. As part of marketing efforts for its Olive Garden chain, Complainant offers an annual pasta special promoted under its NEVER ENDING PASTA BOWL mark. Complainant’s subsidiary, Darden Concepts, Inc., first registered its NEVER ENDING PASTA BOWL mark on August 24, 1999 (Reg. No. 2,272,416).
Respondent registered its disputed domain name on October 2, 2007. Respondent’s disputed domain name resolves to a website that merely states that the website is coming soon.
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’s subsidiary first registered its NEVER ENDING
PASTA BOWL mark on August 24, 1999. The
Panel finds this registration sufficiently establishes Complainant’s rights in
its NEVER ENDING PASTA BOWL mark pursuant to Policy ¶ 4(a)(i). See
Innomed Techs., Inc. v. DRP Servs.,
FA 221171 (Nat. Arb. Forum Feb. 18, 2004) (“Registration of
the NASAL-AIRE mark with the USPTO establishes Complainant's rights in the
mark.”); see
also
Respondent’s disputed domain name fully incorporates
Complainant’s NEVER ENDING PASTA BOWL mark with the deletion of the spaces
between the words and the addition of the generic top-level domain “.com.” Since spaces are impermissible characters in
a domain name and top-level domains are required elements of every domain name,
the Panel finds Respondent’s disputed domain name is identical to Complainant’s
mark pursuant to Policy ¶ 4(a)(i). See
The Panel finds Policy ¶ 4(a)(i) is satisfied.
Complainant asserts Respondent lacks rights and legitimate interests in the disputed domain name. Complainant must establish a prima facie case to support these assertions, and the Panel finds Complainant has done so in these proceedings. Once Complainant has produced a sufficient prima facie case, the burden shifts to Respondent to establish otherwise. Respondent failed to submit a response to these proceedings, thus the Panel may infer Respondent lacks rights and legitimate interests in the disputed domain name. However, the Panel will examine the record to determine whether Respondent has rights or legitimate interests pursuant to Policy ¶ 4(c). See 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.”); see also Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that the complainant’s allegations are true unless clearly contradicted by the evidence).
Complainant asserts Respondent is not commonly known by the disputed domain name. The WHOIS information lists Respondent as “Technology Solutions.” Complainant maintains it has never authorized Respondent to use its NEVER ENDING PASTA BOWL mark. Thus, the Panel finds 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 Jan. 23, 2001) (finding that the respondent does not have rights in a domain name when the respondent is not known by the mark); see also Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interests where the respondent was not commonly known by the mark and never applied for a license or permission from the complainant to use the trademarked name).
Respondent’s disputed domain name resolves to a website that merely states a website is coming soon. The Panel finds Respondent’s failure to develop the website is evidence Respondent lacks rights and legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). See Flor-Jon Films, Inc. v. Larson, FA 94974 (Nat. Arb. Forum July 25, 2000) (finding that the respondent’s failure to develop the site demonstrates a lack of legitimate interest in the domain name); see also Hewlett-Packard Co. v. Rayne, FA 101465 (Nat. Arb. Forum Dec. 17, 2001) (finding that the “under construction” page, hosted at the disputed domain name, did not support a claim of right or legitimate interest under Policy ¶ 4(a)(ii)).
The Panel finds Policy ¶ 4(a)(ii) has been satisfied.
The Panel finds that Respondent’s registration and use of the Offending Domain, despite actual or constructive knowledge of Complainant’s trademark rights, establishes Respondents’ registration and use of the <neverendingpastabowl.com> domain name in bad faith pursuant to Policy ¶ 4(a)(iii). See Pfizer Inc. v. Suger, D2002-0187 (WIPO Apr. 24, 2002)(finding that because the link between the complainant’s mark and the content advertised on the respondent’s website was obvious, the respondent “must have known about the Complainant’s mark when it registered the subject domain name”); Orange Glo Int’l v. Blume, FA 118313 (Nat. Arb. Forum Oct. 4, 2002) (“Complainant’s OXICLEAN mark is listed on the Principal Register of the USPTO, a status that confers constructive notice on those seeking to register or use the mark or any confusingly similar variation thereof.”)
The Panel finds Respondent’s failure to develop the website
resolving from the disputed domain name is evidence of bad faith registration
and use pursuant to Policy ¶ 4(a)(iii). See
DCI
The Panel finds 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 <neverendingpastabowl.com> domain name be TRANSFERRED from Respondent to Complainant.
Honorable Karl V. Fink (Ret.), Panelist
Dated: October 6, 2008
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