Kellogg North America Company v. Hka c/o Dynadot Privacy
Claim Number: FA1503001610610
Complainant is Kellogg North America Company (“Complainant”), Michigan, USA. Respondent is Hka c/o Dynadot Privacy (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <kelloggs.buzz>, registered with Dynadot LLC.
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.
Hon. Karl V. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 20, 2015; the Forum received payment on March 20, 2015.
On March 22, 2015, Dynadot LLC confirmed by e-mail to the Forum that the <kelloggs.buzz> domain name is registered with Dynadot LLC and that Respondent is the current registrant of the name. Dynadot LLC has verified that Respondent is bound by the Dynadot LLC 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 23, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 13, 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@kelloggs.buzz. Also on March 23, 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 17, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Karl V. Fink (Ret.) 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.
Complainant
Complainant owns the KELLOGG’S mark through its registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 115,348, registered Feb. 6, 1917). Complainant uses the KELLOGG’S mark in connection with its multinational food manufacturing company, which sells breakfast foods, snacks, frozen foods, and beverages. The <kelloggs.buzz> domain name is confusingly similar to Complainant’s KELLOGG’S mark. The <kelloggs.buzz> domain name removes the apostrophe from Complainant’s mark and adds the top-level domain “.buzz” to the domain name.
Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, as the WHOIS record for the disputed domain name does not reflect that Respondent is commonly known by the disputed domain name. Further, Respondent lacks rights or legitimate interests in the <kelloggs.buzz> domain name, as evidenced by Respondent’s failure to use the disputed domain name in connection with a bona fide offering of goods or services, or for a legitimate noncommercial or fair use. Respondent’s disputed domain name features unrelated hyperlinks on its resolving website, diverting Internet users who are seeking Complainant’s website.
Respondent has engaged in bad faith registration and use of the <kelloggs.buzz> domain name. Respondent intentionally attracts, for commercial gain, Internet users to its websites by creating a likelihood of confusion with Complainant’s mark. Further, Respondent knew or should have known of the KELLOGG’S mark at the time of the disputed domain name’s registration, which is additional evidence of bad faith under Policy ¶ 4(a)(iii).
Respondent
Respondent did not submit a Response in this proceeding.
For the reasons set forth below, the Panel finds Complainant is entitled to the relief requested.
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.”).
Complainant contends that it owns the KELLOGG’S mark through its registration with the USPTO (e.g., Reg. No. 115,348, registered Feb. 6, 1917). Complainant states that it uses the KELLOGG’S mark in connection with its multinational food manufacturing company, which sells breakfast foods, snacks, frozen foods, and beverages. Past panels have concluded that registration of a mark with a trademark authority is sufficient to establish rights in the mark pursuant to Policy ¶ 4(a)(i). See Paisley Park Enters. v. Lawson, FA 384834 (Nat. Arb. Forum Feb. 1, 2005) (concluding that the complainant had established rights in the PAISLEY PARK mark under Policy ¶ 4(a)(i) through registration of the mark with the USPTO). Accordingly, the Panel finds that Complainant’s USPTO registration is sufficient under Policy ¶ 4(a)(i).
Complainant asserts that the <kelloggs.buzz> domain name is confusingly similar to Complainant’s KELLOGG’S mark. Complainant notes that the <kelloggs.buzz> domain name removes the apostrophe from Complainant’s mark and adds a top-level domain “.buzz” to the domain name. Previous panels have found that the removal of an apostrophe does not negate confusing similarity. See Chi-Chi’s, Inc. v. Rest. Commentary, D2000-0321 (WIPO June 29, 2000) (finding the domain name <chichis.com> to be identical to the complainant’s CHI-CHI’S mark, despite the omission of the apostrophe and hyphen from the mark). Past panels have also found that the addition of a top-level domain does nothing to distinguish the disputed domain name from the registered mark. See Starkey v. Bradley, FA 874575 (Nat. Arb. Forum Feb. 12, 2007) (“The suffix .mobi should be treated the same way as .com and should be ignored when comparing the mark and the disputed domain name.”). Therefore, the Panel finds the <kelloggs.buzz> domain name is confusingly similar pursuant to Policy ¶ 4(a)(i).
Complainant has proven this element.
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. 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 alleges that Respondent has no rights or legitimate interests in the disputed domain name. Complainant claims that Respondent is not commonly known by the disputed domain name, as there is no evidence that Respondent is commonly known by the <kelloggs.buzz> domain name, including the WHOIS record. Complainant argues it has not licensed, authorized, or permitted Respondent to register the domain name incorporating its mark. The Panel agrees that these contentions are sufficient to establish Respondent’s lack of rights in the disputed domain name under Policy ¶ 4(c)(ii). See Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that the respondent was not commonly known by the <lilpunk.com> domain name as there was no evidence in the record showing that the respondent was commonly known by that domain name, including the WHOIS information as well as the complainant’s assertion that it did not authorize or license the respondent’s use of its mark in a domain name).
Complainant contends that Respondent lacks rights or legitimate interests in the <kelloggs.buzz> domain name, as evidenced by Respondent’s failure to use the disputed domain name in connection with a bona fide offering of goods or services, or for a legitimate noncommercial or fair use. Complainant asserts that Respondent’s disputed domain name features unrelated hyperlinks on its resolving website, diverting Internet users who are seeking Complainant’s website. Some of the featured hyperlinks include “Health Insurance Plans” and “Payday Cash Loan.” Past panels have found that a respondent’s use of unrelated hyperlinks is neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use. See Constellation Wines U.S., Inc. v. Tex. Int’l Prop. Assocs., FA 948436 (Nat. Arb. Forum May 8, 2007) (finding that the respondent had no rights or legitimate interests under Policy ¶¶ 4(c)(i) or 4(c)(iii) by using the disputed domain name to operate a website featuring links to goods and services unrelated to the complainant). The Panel concludes that Respondent’s use of the disputed domain name is not a bona fide offering of goods or services under Policy ¶ 4(c)(i), and that, as Respondent presumably attempts to generate a profit through referral fees, there can logically be no “noncommercial or fair use” pursuant to Policy ¶ 4(c)(iii).
Complainant has proven this element.
Complainant argues that, for commercial gain, Respondent intentionally attracts Internet users to its websites by creating a likelihood of confusion with Complainant’s mark. Complainant claims that Respondent presumably receives “click through” fees through the use of its disputed domain name, and registered the disputed domain name to attract and mislead unsuspecting users for its own commercial benefit. Past panels have found that hyperlinks are typically associated with referral fees, and a respondent’s use of a confusingly similar domain name to resolve to a webpage displaying hyperlinks is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See T-Mobile USA, Inc. v. utahhealth, FA 697821 (Nat. Arb. Forum June 7, 2006) (holding that the registration and use of a domain name confusingly similar to a complainant’s mark to direct Internet traffic to a commercial “links page” in order to profit from click-through fees or other revenue sources constitutes bad faith under Policy ¶ 4(b)(iv)). The Panel therefore finds that Respondent has engaged in bad faith registration and use under Policy ¶ 4(b)(iv).
Complainant contends that Respondent knew or should have known of the KELLOGG’S mark at the time of the disputed domain name’s registration, which is additional evidence of bad faith under Policy ¶ 4(a)(iii). Complainant argues that it has an international presence and reputation, and a simple Internet search would have informed Respondent of Complainant’s rights in the KELLOGG’S mark. Although panels have not generally regarded constructive notice to be sufficient for a finding of bad faith, the Panel finds that Respondent had actual knowledge of Complainant's mark and rights, and therefore determines that Respondent registered the disputed domain name in bad faith under Policy ¶ 4(a)(iii). See Nat'l Patent Servs. Inc. v. Bean, FA 1071869 (Nat. Arb. Forum Nov. 1, 2007) ("[C]onstructive notice does not support a finding of bad faith registration."); see also Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Nat. Arb. Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent "actual knowledge of Complainant's mark when registering the disputed domain name").
Complainant has proven this element.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is ORDERED that the <kelloggs.buzz> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Karl V. Fink (Ret.), Panelist
Dated: April 21, 2015
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