Cambrooke Foods, LLC v. SafeFoods Company and Ed Deely
Claim Number: FA1007001336467
Complainant is Cambrooke
Foods, LLC (“Complainant”), represented by Thomas Paul Gorman, of Sherin and Lodgen LLP,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <cambrookfoods.info>, 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.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on July 20, 2010.
On July 21, 2010, GoDaddy.com Inc. confirmed by e-mail to the National Arbitration Forum that the <cambrookfoods.info> 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 July 26, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 16, 2010 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@cambrookfoods.info by e-mail. Also on July 26, 2010, 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 National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On August 23, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A. Carmody, Esq., 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 "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of a Written Notice, as defined in Rule 1. 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 <cambrookfoods.info> domain name is confusingly similar to Complainant’s CAMBROOKE FOODS mark.
2. Respondent does not have any rights or legitimate interests in the <cambrookfoods.info> domain name.
3. Respondent registered and used the <cambrookfoods.info> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Cambrooke Foods, LLC, registered its CAMBROOKE FOODS mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,155,676 issued October 17, 2006). Complainant uses its CAMBROOKE FOODS mark in connection with dietary therapy and specialized food products for people with errors of protein metabolism.
Respondent, SafeFoods Company and Ed Deely, registered the <cambrookfoods.info> domain name on July 9, 2010. The disputed domain name resolves to a website that contains negative and false statements about Complainant and Complainant’s business.
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.
Preliminary Issue:
Multiple Respondents
In the instant proceedings, Complainant has alleged that the entities which control the domain name at issue are effectively controlled by the same person and/or entity, which is operating under several aliases. Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.” The WHOIS information identifies “SafeFoods Company” as the registrant of the domain name and identifies “Ed Deely” as the administrative contact. Therefore, the Panel finds that SafeFoods Company and Ed Deely are the same entity for the purpose of these proceedings.
Complainant owns trademark registrations with the USPTO for
its CAMBROOKE FOODS mark (e.g., Reg.
No. 3,155,676 issued October 17, 2006).
The Panel determines that Complainant’s trademark registrations are
sufficient to establish rights in its CAMBROOKE FOODS pursuant to Policy ¶ 4(a)(i). See Trip Network Inc. v.
Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (finding that the
complainant’s federal trademark registrations for the CHEAPTICKETS and
CHEAPTICKETS.COM marks were adequate to establish its rights in the mark
pursuant to Policy ¶ 4(a)(i)); see also Miller Brewing Co. v. Miller Family,
FA 104177 (Nat. Arb. Forum Apr. 15, 2002) (finding that the
complainant had established rights to the MILLER TIME mark through its federal
trademark registrations). Complainant
holds a trademark registration for its BUD mark with the
Complainant claims that Respondent’s <cambrookfoods.info>
domain name is confusingly similar to Complainant’s CAMBROOKE FOODS mark. The disputed domain name contains a
misspelled version of Complainant’s mark with the omission of the letter
“e.” The Panel determines that the omission
of a single letter to create a common misspelling of Complainant’s mark fails
to sufficiently distinguish the disputed domain name from Complainant’s
mark. Pfizer
Inc. v. BargainName.com, D2005-0299 (WIPO
Apr. 28, 2005) (holding that the <pfzer.com> domain name was confusingly
similar to the complainant’s PFIZER mark, as the respondent simply omitted the
letter “i”). The disputed
domain name also removes the space separating the terms of Complainant’s mark
and adds the generic top-level domain (“gTLD”) “.info” to Complainant’s
mark. The Panel holds that the removal
of a space and the addition of a gTLD are irrelevant to a Policy ¶ 4(a)(i) analysis as spaces are impermissible and gTLDs are
required in domain names. See Bond & Co. Jewelers, Inc. v.
The Panel finds Policy ¶ 4(a)(i) is satisfied.
Complainant alleges that Respondent lacks rights and legitimate interests in the <cambrookfoods.info> domain name. Previous panels have found that 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 pursuant to Policy ¶ 4(a)(ii). The Panel finds Complainant has made a prima facie case. 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 <cambrookfoods.info> domain name. However, the Panel will examine the record to determine whether Respondent has rights or legitimate interests in the disputed domain name under Policy ¶ 4(c). See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also Vanguard Group, Inc. v. Collazo, FA 349074 (Nat. Arb. Forum Dec. 1, 2004) (finding that because the respondent failed to submit a Response, “Complainant’s submission has gone unopposed and its arguments undisputed. In the absence of a Response, the Panel accepts as true all reasonable allegations . . . unless clearly contradicted by the evidence.”).
The Panel determines that the WHOIS information does not
indicate that Respondent is commonly known by the <cambrookfoods.info>
domain name. Moreover, as Respondent has
not responded in this case, Respondent has failed to present any evidence, and
the Panel fails to find any evidence in the record, that would suggest that
Respondent is commonly known by the disputed domain name. Thus, the Panel holds that Respondent is not
commonly known by the <cambrookfoods.info> domain name pursuant to
Policy ¶ 4(c)(ii). See Tercent
Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003)
(stating “nothing in Respondent’s WHOIS information implies that Respondent is
‘commonly known by’ the disputed domain name” as one factor in determining that
Policy ¶ 4(c)(ii) does not apply); see also M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3,
2006) (finding that the respondent was not commonly known by the
<cigaraficionada.com> domain name under Policy ¶ 4(c)(ii)
based on the WHOIS information and other evidence in the record).
Complainant claims that the website resolving from Respondent’s <cambrookfoods.info> domain name contains statements that criticize Complainant’s business and provide negative and false statements about Complainant’s products. Previous panels have found that a respondent’s use of a confusingly similar domain name for a similar purpose is not a bona fide offering of goods or services under Policy ¶ (c)(i) or a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii). See Name.Space Inc. v. Network Solutions, Inc., 202 F.3d 573, 585 (2d Cir. 2000) (finding that although the content of the respondent’s site may be entitled to First Amendment protection, the respondent’s use of the complainant’s trademark in the domain name of its site is not protected.); see also Weekley Homes, L.P. v. Fix My House Or Else?, FA 96609 (Nat. Arb. Forum Apr. 18, 2001) (finding that establishment of a website containing criticism is not a legitimate use of the <davidweekleyhome.com> domain name because the disputed domain name is confusingly similar to the complainant's DAVID WEEKLEY HOMES mark). Therefore, the Panel finds Respondent lacks rights or legitimate interests under Policy ¶¶ 4(c)(i) and (iii).
The Panel finds Policy ¶ 4(a)(ii)
has been satisfied.
The Panel finds that it may consider the totality of the
circumstances when conducting a Policy ¶ 4(a)(iii)
analysis, and that it is not limited to the enumerated factors in Policy ¶
4(b). See Do The
Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (“[T]he
examples [of bad faith] in Paragraph 4(b) are intended to be illustrative,
rather than exclusive.”).
Complainant contends that Respondent was a former employee of a third-party contractor that was working for Complainant. According to Complainant, Respondent was fired by the contractor and Complainant due to Respondent’s lack of an electrician’s license that Respondent claimed to own. Complainant alleges that there was a heated dispute between the third-party contractor, Complainant, and Respondent. Complainant believes that Respondent registered the disputed domain name for the purpose of revenge. Past panels have held that the registration and use of a confusingly similar disputed domain name to operate a website that contains false and negative statements about a complainant is in bad faith under Policy ¶ 4(a)(iii). See Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (stating that although the respondent’s complaint website did not compete with the complainant or earn commercial gain, the respondent’s appropriation of the complainant’s trademark with a view to cause “damage and disruption to [Complainant] cannot be right, still less where the use of the Domain Name will trick internet users intending to visit the trademark owner’s site into visiting the registrant’s site” in holding that the disputed domain name was registered in bad faith); see also Mission KwaSizabantu v. Rost, D2000-0279 (WIPO June 7, 2000) (finding that the respondent registered the domain names <kwasizabantu.com>, <kwasizabantu.org>, and <kwasizabantu.net> in bad faith where the respondent published negative comments regarding the complainant’s organization on the confusingly similar website). Consequently, the Panel finds Respondent’s use of the confusingly similar <cambrookfoods.info> domain name constitutes bad faith registration and use under Policy ¶ 4(a)(iii).
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 <cambrookfoods.info> domain name be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: August 24, 2010
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