Richardson Brands Company v. Portfolio Admin / Old Mill Sites
Claim Number: FA1108001401896
Complainant is Richardson Brands Company (“Complainant”), represented by Anthony J. Golowski II of Goldberg Segalla LLP, New Jersey, USA. Respondent is Portfolio Admin / Old Mill Sites (“Respondent”), Grenada.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <gravymaster.com>, registered with Domaineered.ca 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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on August 4, 2011; the National Arbitration Forum received payment on August 4, 2011.
On August 5, 2011, Domaineered.ca Inc. confirmed by e-mail to the National Arbitration Forum that the <gravymaster.com> domain name is registered with Domaineered.ca Inc. and that Respondent is the current registrant of the name. Domaineered.ca Inc. has verified that Respondent is bound by the Domaineered.ca Inc. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On August 8, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 29, 2011 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@gravymaster.com. Also on August 8, 2011, 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 September 2, 2011, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Bruce E. Meyerson 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" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. 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 <gravymaster.com> domain name is identical to Complainant’s GRAVYMASTER mark.
2. Respondent does not have any rights or legitimate interests in the <gravymaster.com> domain name.
3. Respondent registered and used the <gravymaster.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Richardson Brands Company, owns rights in the GRAVYMASTER mark in reference to gravies, sauces, stew mixes and seasonings. Complainant owns several trademark registrations with the United States Patent and Trademark Office ("USPTO") for its GRAVYMASTER (Reg. No. 671,280 registered December 16, 1958) and GRAVY MASTER marks (Reg. No. 553,941 issued January 22, 1952).
Respondent, Portfolio Admin / Old Mill Sites, registered the <gravymaster.com> domain name on November 29, 2007. Complainant has not provided evidence to demonstrate to what website the disputed domain name resolves.
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 has presented the Panel with several trademark registrations that it holds with the USPTO, including those for the GRAVYMASTER (Reg. No. 671,280 registered December 16, 1958) and GRAVY MASTER marks (Reg. No. 553,941 issued January 22, 1952). The Panel finds that Complainant has presented sufficient information to show that it possesses rights in the GRAVYMASTER marks under Policy ¶4(a)(i). See Expedia, Inc. v. Tan, FA 991075 (Nat. Arb. Forum June 29, 2007) (“As the [complainant’s] mark is registered with the USPTO, [the] complainant has met the requirements of Policy ¶ 4(a)(i).”); see also 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 the respondent operates; therefore it is sufficient that the complainant can demonstrate a mark in some jurisdiction).
Further, Complainant contends that the domain name is identical to its GRAVYMASTER mark. The Panel notes that the only change present in the <gravymaster.com> domain name is the addition of the generic top-level domain (“gTLD”) “.com.” Therefore, the Panel finds that the disputed domain name is identical to Complainant’s mark pursuant to Policy ¶ 4(a)(i). See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis); see also Jerry Damson, Inc. v. Tex. Int’l Prop. Assocs., FA 916991 (Nat. Arb. Forum Apr. 10, 2007) (“The mere addition of a generic top-level domain (“gTLD”) “.com” does not serve to adequately distinguish the Domain Name from the mark.”).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant contends that Respondent does not have rights or legitimate interests in the <gravymaster.com> domain name under Policy ¶ 4(a)(ii). Complainant is required to provide the Panel with a prima facie case in support of its allegations before the burden of proof is transferred to Respondent. See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding the “complainant must first make a prima facie case that [the] respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii), and then the burden shifts to [the] respondent to show it does have rights or legitimate interests.”). In this instance, the Panel finds that Complainant has failed to satisfy its burden of proof. Without such evidence on record, the Panel is unable to make a determination of whether Respondent actually has rights or legitimate interests in the domain name. See VeriSign Inc. v. VeneSign C.A., D2000-0303 (WIPO June 28, 2000) (“Respondent's default, however, does not lead to an automatic ruling for Complainant. Complainant still must establish a prima facie case showing that under the Uniform Domain Name Dispute Resolution Policy it is entitled to a transfer of the domain name.”); see also Terminal Supply, Inc. v. HI-LINE ELECTRIC, FA 746752 (Nat. Arb. Forum Aug. 24, 2006) (holding that the complainant did not satisfactorily meet its burden and as a result found that the respondent had rights and legitimate interests in the domain name under Policy ¶ 4(a)(ii)).
Therefore, the Panel finds that Complainant has failed to satisfy the requirements of Policy ¶ 4(a)(ii).
Complainant argues that Respondent has registered and is using the disputed domain name in bad faith. However, mere assertions of bad faith registration and use are not sufficient under the Policy. Complainant has failed to provide the Panel with any evidence of Respondent’s purported use of the disputed domain name. Therefore, Complainant has not met its burden of proof under Policy ¶ 4(a)(iii). See Starwood Hotels & Resorts Worldwide, Inc. v. Samjo CellTech.Ltd, FA 406512 (Nat. Arb. Forum Mar. 9, 2005) (finding that the complainant failed to establish that respondent registered and used the disputed domain name in bad faith because mere assertions of bad faith are insufficient for a complainant to establish Policy ¶ 4(a)(iii)); see also Graman USA Inc. v. Shenzhen Graman Indus. Co., FA 133676 (Nat. Arb. Forum Jan. 16, 2003) (finding that general allegations of bad faith without supporting facts or specific examples do not supply a sufficient basis upon which the panel may conclude that the respondent acted in bad faith).
The Panel finds that Complainant has failed to satisfy the requirements of Policy ¶ 4(a)(iii).
Having failed to establish all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED, without prejudice.
Accordingly, it is Ordered that the <gravymaster.com> domain name REMAIN WITH Respondent.
Bruce E. Meyerson, Panelist
Dated: September 12, 2011
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