Claim Number: FA0810001228948
PARTIES
Complainant is Belgium's Best, represented by Matthew
H. Swyers, of The Swyers Law Firm, PLLC,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <belgiumsbestchocolates.com>,
registered with Network Solutions, Inc.
PANEL
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.
Timothy D. O’Leary as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
electronically on October 10, 2008; the
National Arbitration Forum received a hard copy of the Complaint on October 13, 2008.
On October 13, 2008, Network Solutions, Inc. confirmed by e-mail to
the National Arbitration Forum that the <belgiumsbestchocolates.com> domain
name is registered with Network Solutions, Inc.
and that the Respondent is the current registrant of the name. Network
Solutions, Inc. has verified that Respondent is bound by the Network Solutions, 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 October 21, 2008, a
Notification of Complaint and Commencement of Administrative Proceeding (the
“Commencement Notification”), setting a deadline of November 10, 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@belgiumsbestchocolates.com
by e-mail.
A timely Response was received and determined to be complete on November 10, 2008.
An Additional Submission was received from Complainant on November 17,
2008 and found to be timely and complete pursuant to the National Arbitration
Forum’s Supplemental Rule 7.
An Additional Submission was received from Respondent on November 19,
2008.
On November 17, 2008, pursuant to Complainant’s
request to have the dispute decided by a single-member Panel, the National
Arbitration Forum appointed Timothy D. O’Leary as Panelist.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
I. COMPLAINANT’S CONTENTIONS
A. IDENTICAL/OR
CONFUSINGLY SIMILAR
Complainant was established and began using the mark
Its first year sales under the mark were approximately 300,000 euro or today’s equivalent of U.S. $432,000.
As its sales and notoriety under the mark
Additionally, as the worldwide demand for its
product sold under the name
As such, by 1998 Complainant had been using the mark
On or about February 17, 1999 Mr. Van Riet contacted
Complainant to become an importer of Complainant’s product into the
On June 24, 1999 Complainant registered the domain
name <belgiumbest.com> to launch its Internet presence in the sale and
distribution of its chocolate and confectionary products. On or about October
19, 2000, Complainant launched its web site promoting its good and services
under the mark
Complainant, through its related entity, retains
three registrations for its mark
Of note, Respondent did not post pages to the disputed Domain Name until June 21, 2006.
The Respondent’s use of the Domain Name <belgiumsbestchocolates.com> is confusingly similar to Complainant’s marks in that the Domain Name consists of the same or confusingly similar words as Complainant’s mark merely adding the descriptive and/or generic term thereto chocolate.
Respondent’s registration and/or use of
Complainant’s mark as a domain name creates what the Ninth Circuit has labeled
“initial interest confusion.” See
B. RIGHTS AND LEGITIMATE INTERESTS
Since at least June 1, 1988 Complainant has used the
mark BELGIUM’S BEST throughout the world and in particular in Belgium, The
Netherlands, Luxenburg, Germany, the United Kingdom, Singapore, and the United
States to identify its unique products and, in particular, chocolates and
confectionaries. After Complainant’s mark had established longstanding use and
distinctiveness worldwide, including in the
Respondent acted with malice and in willful disregard of Complainant’s rights in its mark after being informed of Complainant’s use thereof in early September 1998 by Flanders Investments, subsequently registering the disputed Domain Name, and then contacting Complainant to become a U.S. importer of its good all the while fraudulently representing itself as Nirvana Chocolates and not informing Complainant of the registration of either the corporate name or Domain Name at issue.
Under such circumstances Respondent cannot claim or
show any rights to the <belgiumsbestchocolates.com>
domain name that are superior to Complainant’s rights in the mark BELGIUM’S
BEST as evidenced by Complainant’s prior use worldwide and use in commerce in
the United States. The uncontroverted evidence establishes that Respondent had
actual knowledge of Complainant’s use of the mark
Respondent registered and is using the Domain Name for the purpose of promoting confusion among users looking for Complainant’s goods and services offered in connection with its marks and to draw attention, by misdirecting traffic to its website, to its goods and services offered in competition with those services provided by Complainant.
C. REGISTRATION AND USE IN BAD FAITH
Respondent registered and is using the Domain Name <belgiumsbestchocolates.com> in bad faith. Specifically, Respondent had
actual and constructive notice of Complainant’s rights in its trademark at the
time it registered the Domain Name. As set forth above, Respondent had actual
notice of Belgium Best’s rights in the trademark insofar as Respondent first
learned of Complainant’s use of the mark from Flanders Investments in early
September 1998. Only thereafter did Respondent register the disputed Domain
Name possibly with the intent to become an importer of Complainant’s goods to
the
Respondent knew of the existence of Complainant’s mark, registered the
Domain Name thereafter through becoming a distributor thereof but then,
instead, launched its own competing web site on or about June 21, 2006.
Complainant began use of the mark in connection with chocolate and
confectionary products early in June 1988 throughout the World and in
particular in
Bad faith is found where a company adopted its mark with the intention
of capitalizing on plaintiff’s goodwill and any confusion between his and the
senior user’s product.”
Respondent capitalizes on Complainant’s goodwill by using Complainant’s
registered service mark in conjunction with the term “chocolates” to lure
unsuspecting Internet users to its site when the said users are searching for
Complainant’s goods and services. As
such, Respondent acted in bad faith in violation of Complainant’s trademark
rights when it registered the domain name <belgiumsbestchocolates.com> after Complainant’s longstanding use of its mark and then, years
later, posted a site thereto offering for sale competing products.
Respondent registered and is using the Domain
Name primarily to disrupt the business of Complainant, a competitor of
Respondent, by using the Domain Name to redirect Internet traffic to its own
web site which offers competing goods and services to those offered by
Complainant.
Specifically, redirecting Internet traffic to a Respondent’s web page
falls within the scope of paragraph 4(b)(iv) of the
Policy whereby using a domain name the respondent intentionally attempts to
attract, for commercial gain, Internet users to its website by creating a
likelihood of confusion with the complainant’s marks as to the source,
sponsorship, affiliation, or endorsement of respondent’s website.
Bad faith can be inferred because of the competition between the
parties. Both parties offer chocolates and confectionaries to the public.
Respondent directs traffic by use of the disputed Domain Name to its own web site
located at <belgiumsbestchocolates.com>. As such, customers seeking out Complainant
on the Internet through the major search engines are, instead, being diverted
to its competition, Respondent. Such acts are prima facie proof of bad faith.
Respondent acted in bad faith after registration of the Domain Name
because no positive action was undertaken for six years. In essence, Respondent
registered the Domain and failed to use the Domain Name for more than half a
decade. The Domain Name registered on or about September 29, 1998, however, the
website was not launched until, at the earliest, May 18, 2004 and more likely
June 21, 2006. Respondent was inactive for six to eight years after
registration and three to five years after the launch of Complainant’s website.
Respondent deceives Internet users who intend to access Complainant’s
site into believing that the goods and services offered by Respondent are in
some manner associated, sponsored, or affiliated with those related goods and
services offered by the Complainant.
Moreover, to the extent that Internet users realize after being
redirected by Domain Name to the website located at <belgiumsbestchocolates.com> that said website is not affiliated with Complainant, injury in the
form of initial interest confusion has already occurred. For these reasons the Domain Name should be
transferred to Complainant.
II. RESPONDENT’S CONTENTIONS
A. IDENTICAL/OR
CONFUSINGLY SIMILAR
Respondent makes no allegations with regard to this policy.
B. RIGHTS
AND LEGITIMATE INTERESTS
On July 29, 1998, in full compliance with this Policy, and more than
ten years before Complainant brought its Complaint, Respondent incorporated in
the
The familiar association of fine chocolate with Belgian origins also
supported Respondent’s choice of name.
The incorporation of
On September 29, 1998, following its July 29, 1998 incorporation, Respondent
registered its Domain Name. Thus, before any notice of the dispute, and for the
past several years, Respondent made preparations to use, and used, the Domain
Name in connection with a bona fide
offering of goods, namely, imported Belgian chocolate.
Under Policy
Complainant falsely implies that Respondent registered the Domain Name
as a result of a September 1998 communication with Flanders Foreign Investment
Office (“FFIO”) representative, whom Complainant does not identify. The
representative was Margaretha (Griet) Dehandschutter, FFIO’s Resident Manager
in
Complainant’s allegation that Respondent “had actual and constructive
notice of the Complainant’s rights in its trademark at the time it registered
the Domain Name” is simply false. Respondent had begun doing business and had
registered the Domain Name for more than a year before Complainant’s December
21, 1999 application to register the mark “
“
Complainant’s mark had not acquired any secondary meaning such that the
phrase in question was clearly associated with Complainant or its products in
the minds of
Having registered its Domain Name within two months after
incorporation, Respondent in fact has been actively using the Domain Name since
2006, as a site for wholesale customers.
C. REGISTRATION
AND USE IN BAD FAITH
Because Respondent has rights or legitimate interests in the Domain
Name, the issue of bad faith is moot.
Complainant cannot show, for example, that Respondent has
“intentionally attempted to attract, for commercial gain, internet users to
[the] web site…by creating a likelihood of confusion with the complainant’s
mark as to the course, sponsorship, affiliation, or endorsement of [the] web
site or location or of a product or service on [the] web site or location.”
Respondent’s website accurately describes that “[s]ince 1998, we have
specialized in importing and distributing the best Belgian Chocolates directly
from
By contrast,
Complainant and Respondent are not competitors. They have been engaged in different businesses
with widely divergent customers for ten years before this dispute arose.
Because Respondent does not seek the same customers as Complainant, Respondent
has no financial incentive to generate confusion with Complainant’s business. The lack of confusion is revealed in
Respondent’s own experience, as attested to by the Van Riet Affidavit, that no
customer has ever contacted Respondent for personalized products of the type
Complainant sells.
Respondent targets customers who are unlikely to do business with
Complainant. Complainant sells products
only as their client’s marketing tools, adopting its clients’ logos for the
product and not otherwise selling its “brand.” This is in marked contrast with Respondent’s
business.
The type of chocolate sold (brand chocolate as opposed to promotional
chocolate) are not similar; the channels of trade are not equivalent; the
websites are not similar; and the classes or prospective purchasers (wholesale
as opposed to retail customers) are not similar.
Complainant and Respondent have co-existed for ten years before Complainant brought these proceedings. Complainant and/or its predecessor-in-interest has had direct knowledge of Respondent by virtue of mutual suppliers of chocolate. In February, 1999, Mr. Van Riet wrote to Complainant, introducing himself and his company. The reference to Nirvana chocolates on the letter attached as Exhibit 8 to the Complaint was not, as Complainant alleges, “fraudulent,” but reflected the identity of Respondent’s principal brand of chocolate. Mr. Van Riet and the principal of Complainant, Guy Desseaux, also spoke at the time of the letter and discussed Respondent’s Internet-based retail sales of Belgian chocolates.
With regard to Respondent’s Domain Name or otherwise, Complainant made
no complaint and took no action, while in the ensuing years Respondent has
substantially invested in and built-up its corporate name and wholesale
business through the website conducted at the Domain Name.
Nirvana is, and has been, Respondent’s principal, but not exclusive,
brand of chocolate since Respondent’s incorporation. Respondent has been
granted numerous trademark registrations for the NIRVANA mark in connection
with its goods. Respondent also markets its “Nirvana” brand products directly
to consumers through the Internet on its retail website, <nirvanachocolates.com>,
which accurately states that “Nirvana Chocolates is a trademark of
Complainant has known for years that Respondent’s corporate identity
was “
At the Domain Name website, Respondent provides information for
wholesale customers who are seeking such branded products for resale to the
public, and who must log in to the site to receive Respondent’s pricing
information. Respondent’s Domain Name wholesale website caters solely to the
wholesale market. Unlike Complainant, Respondent does not use its Domain Name
website for the business of packaging its products in its clients’ trademarks
and logos.
Complainant’s chocolate sales focus on private label sales to corporate
customers where its products are packaged with the buyers’ own trademarks. The
point of private labels is for Complainant’s trademark to effectively disappear
from the packaging as much as possible to avoid conflict with the buyer’s
private label. Indeed. Complainant’s website exhorts, “
Respondent and Complainant are in two different businesses and employ
dissimilar marketing strategies, rendering customer confusion between the
companies unlikely. Respondent’s corporate gifts business differs fundamentally
from Complainant’s private label business. As with Complainant’s customers,
Respondent’s wholesale customers (who known Respondent as “
A year after Respondent registered the Domain Name exactly matching
(without the “[i]nc.”) its identity as a
Respondent and its predecessor have been operating a legitimate
business under the name GTA for several years prior to receiving notice of the
dispute. Respondent’s GTA logo includes the date 1995 and there is evidence of
use of that logo in 1997, prior to the filing in Turkey of Complainant’s
application to register its GTA logo mark and prior to the filing of any of
Complainant’s applications to register the mark in other countries.
Complainant has presented no evidence, for none exists, that Respondent
has registered or has acquired the domain name primarily for the purpose of
selling, renting, or otherwise transferring the domain name registration to
Complainant for valuable consideration in excess of documented out-of-picket
costs directly related to the domain name. To the contrary, the Domain Name is
the same as Respondent’s corporate name (without the “Inc.”), and Respondent
has actively conducted business under its corporate name for more than ten
years, having used the Domain Name as its active wholesale website since at
least 2006.
III. COMPLAINANT’S ADDITIONAL SUBMISSION
Complainant was established and began using the mark
By 1992 the geographic scope of Complainant’s business and sales under
the
By 1996 and 1997 the geographic scope of Complainant’s business and
sales under the BELGIUM’S BEST mark increased further to include sales and
distribution in Great Britain, Germany, and the states of Washington and
Florida in the United States.
By 1998 Complainant had been using the mark
Respondent was organized under the corporate name
On September 29, 1998 Respondent registered the disputed domain name <belgiumsbestchocolates.com>. Complainant contends that said registration
occurred after Respondent was made ware of Complainant through Flanders Foreign
Investment Office (hereinafter “FFIO”).
Respondent admitted that in February of 1999 it wrote to Complainant on
Nirvana Chocolate’s letterhead, Respondent’s principal brand of chocolates. pp.
7-8 at π(xvi). Respondent made no reference to the fact that its corporate
name was
From 1998 until 2006 there is no evidence that Respondent used the
corporate name
Respondent contends that its incorporation under the name
The only evidence of record concerning Respondent’s actual use of the
terms
Respondent’s allegations of legitimate use are insufficient to satisfy
the requirements of Paragraph 4(c)(ii) of the Policy.
As stated above, on September 29, 1998 Respondent registered the
disputed domain name <belgiumsbestchocolates.com>. Complainant contends that said registration
occurred after Respondent was made aware of Complainant through FFIO.
Respondent does not deny this allegation. Rather, Respondent merely contends that the
communication with FFIO occurred months after it “already incorporated” making
no reference to when in time the communication occurred vis-à-vis the domain
name registration at issue.
Respondent admits that the Domain Name at issue was not used until
2006.
Respondent had actual notice of Belgium Best’s rights in the trademark
insofar as Respondent first learned of Complainant’s use of the mark from FFIO
in early September 1998. Only thereafter did Respondent register the disputed
Domain Name possibly with the intent to become an importer of Complainant’s
good to the
Respondent’s registration in September of 1998 but lack of use until 2006
of the domain name at issue still constituted bad faith under the Policy. Bad
faith is established where there is “inaction” on a domain name.
Respondent acted in bad faith after registration of the domain name
because no positive action was undertaken for six years. In essence, Respondent registered the Domain
in September of 1998, had actual notice of Complainant by no later than
February of 1999, but then failed to use the Domain Name until 2006.
Respondent seeks to rely upon Complainant’s alleged delay in enforcing
its rights as a further defense to this matter.
However, where there is no such delay, as in the instant case, such
defense is clearly not applicable. The uncontested facts show that (1)
Respondent was organized under the corporate name
The true date of “co-existence” only began when Respondent posted its
first pages to the disputed domain name in 2006.
After learning of the posting of the web site upon the same beginning
to appear in search engines on or about March 30, 2007 Complainant, by counsel,
submitted its initial cease-and-desist correspondence to Respondent. Improperly
addressed, this initial correspondence was returned. Complainant subsequently sent a second letter
to another address listed for Respondent on April 23, 2007. This letter was received and, in reply, counsel
for Complainant received an acknowledgment from counsel for Respondent on or
about May 11, 2007.
As such, as opposed to the decade of mutual co-existence contended in
Respondent’s Response, Complainant, as evidenced herein, lodged its first
objection to Respondent’s use within 9 months of the posting of pages to the disputed
web site and immediately upon discovery of the existence thereof.
Accordingly, the alleged delay was non-existent.
Respondent and Complainant are in two different businesses and employ
dissimilar marketing strategies. Despite
these unsubstantiated allegations, the marketing strategies are sufficiently
linked to have Complainant’s and Respondent’s web sites listed next to one
another as the top two results in the two largest search engines in the world.
Although Respondent may maintain that marketing channels and
distinctions in the parties’ confections are significant, they are not
sufficient enough to avoid actual confusion as between the actual consumers of
the products.
Respondent attempts to argue that the term
In regard to the
More than five years prior to use of the disputed domain name
Complainant received an international registration for the mark
Even if Complainant’s marks are viewed as geographically descriptive
they have acquired distinctiveness sufficient to form the basis for the instant
Complaint and did so well before Respondent’s admitted first use of the domain
name as issue.
IV. RESPONDENT’S ADDITIONAL SUBMISSION
Complainant’s allegation that “from 1998 until 2006 there is no
evidence that Respondent used the corporate name
These contentions are false because in addition to Respondent’s
incorporation on July 29, 1998, multiple sources of evidence prove that
Respondent legitimately operated its business, and made itself known as,
Belgium’s Best Chocolates, Inc., from the date of incorporation and before
the September 29, 1998 Domain Name registration, to the present.
Respondent’s rights or legitimate interests to the Domain Name exist
when the circumstances show “before any notice to [Respondent] of the dispute,
[its] use of, or demonstrable preparations to use, the domain name or a name
corresponding to the domain name in connection with a bona fide offering of goods or services.”
On July 20, 1998, before founding Respondent, Christophe Van Riet had searched
the Patient and Trademark Office database, and found that an earlier
registration of “
Thereafter, on July 29, 1998, Respondent incorporated as
Respondent used the Domain Name in its business from the July 1998
incorporation to the present. Many documented communications show such use before
the September 29, 1998 Domain Name registration, including the following:
·
On July 27, 1998, Respondent used “
·
On August 18, 1998,
·
Before Respondent registered the Domain Name,
Respondent also received faxes as
Throughout its ten-year history, Respondent has been widely known as,
and operated business under, its “
From its incorporation, Respondent opened bank accounts, issued checks,
processed payroll, issued invoices, and undertook other administrative tasks
using
From Respondent’s inception, and for every label of every Nirvana
Chocolates product sold, the product label states “Made in
As established by overwhelming evidence, it is clear that Respondent
has conducted its business and has been known as
Respondent’s rights or legitimate interests in the Domain Name renders
the false claim of bad faith, for which Complainant bears the burden of proof,
moot. Respondent’s registration and use of the Domain Name, however, has been
undertaken in good faith as part of legitimate and longstanding business
activities. Complainant cannot show, for example, that Respondent has
“intentionally attempted to attract, for commercial gain, internet users to
[the] web site…by creating a likelihood of confusion with the complainant’s
mark as to the source, sponsorship, affiliation, or endorsement of [the] web
site or location or of a product or service on [the] web site or location”
(Policy, Para. 4(b)(iv), identifying circumstances
showing bad faith).
Complainant’s suggestion that Respondent only registered the Domain
Name because of a conversation with Ms. Dehandschutter that occurred in the
Fall of 1998 (Additional Submission, ¶ 8 and ¶ 16) is false. Respondent
registered the Domain Name in furtherance of its legitimate business planned,
incorporated and conducted before any such conversation.
Complainant’s current efforts reflect the change in its management,
rather than any legitimate concern about Respondent’s business. Complainant has
had constructive notice of Respondent’s existence from Respondent’s initial
trademark filing, undertaken on July 23, 1998. As indicated in Exhibit 14 and
its dissemination to Complainant and Respondent, Complainant would have known
of Respondent’s existence for the past several years. Accordingly, the delay in
asserting purported Domain Name rights, while Respondent has been continuing in
its marketing and business efforts, constitutes sufficient delay to justify
denial of the requested relief.
DISCUSSION
Paragraph 15(a) of the Rules for Uniform Domain
Name Dispute Resolution Policy (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.”
Paragraph 4(a) of the Policy requires that the 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 the Respondent
is identical or confusingly similar to a trademark or service mark in which the
Complainant has rights;
(2) the 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.
FINDINGS
Identical or Confusingly Similar: Policy ¶ 4(a)(i).
I find the issues on this element in favor of Complainant.
Complainant has provided evidence
it registered its BELGIUM’S BEST mark with the United States Patent and
Trademark Office (“USPTO”) (Reg. No. 3,362,093 filed April 25, 2007 and issued
January 1, 2008). The Panel finds
Complainant’s registration of its
However,
Respondent registered the <belgiumsbestchocolates.com> domain name on September
29, 1998, which is years before Complainant’s filing for trademark protection
with the USPTO. Complainant has provided
evidence that it has been selling chocolate and confectionary products under
the
Complainant argues that Respondent’s disputed domain name is confusingly similar to Complainant’s
Rights and Legitimate Interests: Policy ¶ 4(a)(ii).
I find the issues on this element in favor of Complainant.
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests in the disputed domain name. 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 UDRP ¶ 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 AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant asserts that Respondent
is not and has never been commonly known by the disputed domain name
because Respondent fraudulently and misleadingly contacted Complainant with the
stated purpose of becoming a
Respondent’s <belgiumsbestchocolates.com> domain name resolves to a
website offering chocolate and confectionary products in direct competition
with Complainant. The Panel finds
Respondent’s effort to confuse Internet users seeking Complainant’s business to
Respondent’s competing website via the disputed domain name is not a bona fide offering of goods or services
pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant
to Policy ¶ 4(c)(iii). See Scholastic Inc. v. Applied Software Solutions, Inc., D2000-1629
(WIPO Mar. 15, 2001) (finding no rights or legitimate interests where
“Respondent initially used the domain name at issue to resolve to a website
where educational services were offered to the same market as that served by
Complainant and only altered that use following a complaint by Complainant”); see also Clear
Channel Commc’ns, Inc. v. Beaty Enters., FA 135008 (Nat. Arb. Forum Jan. 2,
2003) (finding that the respondent, as a competitor of the complainant, had no
rights or legitimate interests in a domain name that utilized the complainant’s
mark for its competing website).
Registration and Use in Bad Faith: Policy ¶ 4(a)(iii).
I find the issues on this element in favor of
Complainant.
Complainant contends in its
Complaint and Additional Submission that Respondent had actual and constructive
notice of Complainant’s rights in the
Complainant argues that
Respondent’s use of the disputed domain name to offer products in direct
competition with Complainant’s business is evidence of bad faith. The Panel finds Respondent’s use of the
disputed domain name is evidence of bad faith registration and use pursuant to
Policy ¶ 4(b)(iii). See
Complainant
also argues that Respondent’s use of the disputed domain is confusingly similar
to Complainant’s mark and used to profit by attracting unknowing Internet users
to Respondent’s website for commercial gain.
The Panel finds this use of the disputed domain name demonstrates
Respondent was attempting to profit from Complainant’s goodwill associated with
its
DECISION
Having established all three elements required under the ICANN Policy,
the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <belgiumsbestchocolates.com> domain
name be TRANSFERRED from Respondent to Complainant.
Timothy D. O’Leary, Panelist
Dated: December 1, 2008
National
Arbitration Forum
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