Haru Holding Corp. v. haruofjapan
Claim Number: FA1503001607728
Complainant is Haru Holding Corp. (“Complainant”), represented by Janet C. Moreira of MAVEN Intellectual Property, Florida, USA. Respondent is haruofjapan (“Respondent”), Illinois, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <haruofjapan.com> ('the Domain Name') , registered with Melbourne IT Ltd.
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.
<<Dawn Osborne>> as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 3, 2015; the Forum received payment on March 3, 2015.
On March 5, 2015, Melbourne IT Ltd confirmed by e-mail to the Forum that the <haruofjapan.com> domain name is registered with Melbourne IT Ltd and that Respondent is the current registrant of the name. Melbourne IT Ltd has verified that Respondent is bound by the Melbourne IT Ltd 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 March 6, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 26, 2015 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@haruofjapan.com. Also on March 6, 2015, the Written Notice of the Complaint, notifying Respondent of the e-mail 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 Forum transmitted to the parties a Notification of Respondent Default.
On April 6, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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 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
The Complainant's contentions can be summarised as follows:
The Complainant is the owner of several registered trade marks consisting or including HARU in, inter alia, the USA for restaurant services, first registered in 2002, to which the Domain Name is confusingly similar. The first HARU restaurant opened in New York in December 1996. Complainant owns and operates six Japanese restaurants in the USA, also offering take out services. The HARU trade marks have generated so much goodwill that any related goods or services, domain name or business using such marks is immediately associated by the public with the Complainant.
The addition of the geographical phrase 'of Japan' suggests an affiliation between Complainant and Respondent when it does not exist. It simply acts to mislead consumers by suggesting that Respondent's web site provides information relating to HARU restaurants in Japan.
Respondent is not commonly known by and does not have any rights or legitimate interests in the Domain Name. It does not own any trade marks rights in the HARU name and it is not using the Domain Name in relation to a bona fide offering of goods and services. The Complainant has not authorised the Respondent to use the Domain Name and the Respondent is not connected to the Complainant. The Domain Name is being used in connection with a pay per click web site indexing advertising links to other web sites predominantly for restaurant related goods/services.
Respondent registered and used the Domain Name in bad faith. It was registered more than a decade after the Complainant began using its HARU marks and Respondent registered it without the Complainant's permission in order to trade on the Complainant's goodwill and reputation. Due to the nearly identical nature of the HARU marks and the Domain Name it is likely to cause confusion, mistake or deceive as to the affiliation of Respondent with the Complainant. By using the HARU marks Respondent intent is to confuse actual and prospective customers of Complainant and to trade off the valuable goodwill and reputation of the HARU trade marks.
Respondent is intentionally precluding Complainant from registering and using the Domain Name to properly advertise its goods and services and reflecting the HARU trademarks in a corresponding Domain Name. This is evidenced as the Respondent ignored Complainant's request for transfer of the Domain Name despite a written request to this effect.
Passive use and registration of a Domain Name is also bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding and has consented to transfer.
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."
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.
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.”).
In e mails to the Respondent and to the Centre the Respondent consented to transfer. As such the Panel decides to forgo the traditional UDRP analysis and order an immediate transfer of the Domain Name. See Disney Enters Inc. v Morales FA 475191 (Nat. Arb Forum June 24, 2005) (Under such circumstances where Respondent has agreed to comply with the Complainant's request the Panel felt it expedient and judicial to forego the traditional UDRP analysis and order the transfer of the domain names.)
Accordingly, it is Ordered that the <haruofjapan.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: April 12, 2015
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