Henny Penny Corporation v. mehmet balaman
Claim Number: FA1611001702214
Complainant is Henny Penny Corporation (“Complainant”), represented by Jennifer L. Dollard of FARUKI IRELAND & COX P.L.L., Ohio, USA. Respondent is mehmet balaman (“Respondent”), Great Britain.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <hennypennyparts.com>, registered with Tucows Domains 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.
David A. Einhorn appointed as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 9, 2016; the Forum received payment on November 9, 2016.
On November 10, 2016, Tucows Domains Inc. confirmed by e-mail to the Forum that the <hennypennyparts.com> domain name is registered with Tucows Domains Inc. and that Respondent is the current registrant of the name. Tucows Domains Inc. has verified that Respondent is bound by the Tucows Domains 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 November 14, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 5, 2016 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@hennypennyparts.com. Also on November 14, 2016, 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 December 13, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David A. Einhorn 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
Policy ¶ 4(a)(i)
Complainant has rights in the HENNY PENNY mark through its registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,953,188, registered on January 30, 1996). Respondent’s <hennypennyparts.com> domain name is confusingly similar to the HENNY PENNY mark because it contains the mark along with the generic word “parts.”
Policy ¶ 4(a)(ii)
Respondent is not commonly known by the <hennypennyparts.com> domain name because it has no connection to Complainant or permission to use the HENNY PENNY mark, because the available WHOIS information lists “Mehmet Balaman” as Registrant, and because the contact information on the resolving website indicates that Respondent is known as “Sheffcat Catering Equipment Supplies,” or “Sheffcat Ltd.” Respondent fails to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use because it has not been authorized to sell parts for Complainant’s products but the resolving website purports to do so by misleading customers into believing that Respondent is affiliated with Complainant.
Policy ¶ 4(a)(iii)
Respondent uses the <hennypennyparts.com> domain name in bad faith because the resolving website is used in a disruptive manner to intentionally attract customers for commercial gain by creating confusion as to Complainant’s connection to the website through the purported sale of parts for Complainant’s products. Respondent registered the <hennypennyparts.com> domain name in bad faith because it did so with actual knowledge of Complainant’s rights in the HENNY PENNY mark as demonstrated by the use of the website and the unique and uncommon phrase that constitutes the mark.
B. Respondent
Respondent failed to submit a formal Response in this proceeding. The Panel notes that Respondent’s domain name was created on June 11, 2010.
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(f), 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 (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 claims to have rights in the HENNY PENNY mark through its registration with the USPTO (e.g., Reg. No. 1,953,188, registered on January 30, 1996) for use with pressure fryers and related goods. Complainant has provided this registration. As such, the Panel finds that Complainant has rights in the HENNY PENNY mark. See Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum Aug. 4, 2015) (finding that Complainant’s USPTO registrations for the HAAS mark sufficiently demonstrate its rights in the mark under Policy ¶ 4(a)(i).).
Complainant alleges that Respondent’s <hennypennyparts.com> domain name is confusingly similar to the HENNY PENNY mark because it contains the mark along with the word “parts.” Complainant urges that the word “parts” is generic and does not render the domain name dissimilar from the mark. The Panel agrees, and finds the <hennypennyparts.com> domain name confusingly similar to the HENNY PENNY mark. Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exists where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase).
Complainant maintains that Respondent is not commonly known by the <hennypennyparts.com> domain name because it has no connection to Complainant or permission to use the HENNY PENNY mark, while the available evidence suggests Respondent is not so known. Complainant urges that the available WHOIS information lists “Mehmet Balaman” as Registrant and that the contact information on the resolving website indicates that Respondent is known as “Sheffcat Catering Equipment Supplies,” or “Sheffcat Ltd.” Complainant has provided screenshots of the website to demonstrate how Respondent refers to itself on the “Contact Us” page and the “Terms of Trade.” In light of the lack of any contrary evidence from Respondent, the Panel agrees that Respondent has not been commonly known by the <hennypennyparts.com> domain name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1574905 (Forum September 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).
Complainant contends that Respondent fails to use the <hennypennyparts.com> domain name to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use because it has not been authorized to sell parts for Complainant’s products, but the resolving website purports to do so by misleading customers into believing that Respondent is affiliated with Complainant. Complainant has provided screenshots of Respondent’s web site evidencing such use. The Panel finds that such use is neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use. See Fadal Engineering, LLC v. DANIEL STRIZICH, INDEPENDENT TECHNOLOGY SERVICE INC. FA1581942 (Forum November 13, 2014) (finding that Respondent’s use of the disputed domain to sell products related to Complainant without authorization “does not amount to a bona fide offering of goods or services under policy ¶ 4(c)(i), or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”).
Thus, Complainant has also satisfied Policy ¶ 4(a)(ii).
Complainant alleges that Respondent uses the <hennypennyparts.com> domain name in bad faith because the resolving website is used in a disruptive manner to intentionally attract customers for commercial gain by creating confusion as to Complainant’s connection to the website through the purported sale of parts for Complainant’s products. Complainant urges that Respondent has not been authorized to sell parts for Complainant’s products but that the website purports to do so nonetheless. The Panel finds this evidence sufficient to demonstrate that Respondent seeks to sell parts for Complainant’s products or that the website fosters confusion related to its connection with Complainant. This constitutes use of the domain name in bad faith according to Policy ¶ 4(b)(iii) and/or Policy ¶ 4(b)(iv). See G.D. Searle & Co. v. Celebrex Cox-2 Vioxx.com, FA 124508 (Forum Oct. 16, 2002) (“Unauthorized use of Complainant’s CELEBREX mark to sell Complainant’s products represents bad faith use under Policy ¶ 4(b)(iii).”); see also Hewlett-Packard Co. v. Ali, FA 353151 (Forum Dec. 13, 2004) (“Respondent [used “HP” in its domain name] to benefit from the goodwill associated with Complainant’s HP marks and us[ed] the <hpdubai.com> domain name, in part, to provide products similar to those of Complainant. Respondent’s practice of diversion, motivated by commercial gain, constitutes bad faith registration and use pursuant to Policy ¶ 4(b)(iv).”).
Complainant asserts that Respondent registered the <hennypennyparts.com> domain name in bad faith because it did so with actual knowledge of Complainant’s rights in the HENNY PENNY mark. Complainant urges that Respondent’s knowledge is demonstrated through its use of the website purporting to sell parts for HENNY PENNY products. The Panel agrees and finds that Respondent registered the <hennypennyparts.com> domain name with actual knowledge of Complainant’s rights in the HENNY PENNY mark, and that therefore such registration was procured in bad faith.
Thus, Complainant has also satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <hennypennyparts.com> domain name be TRANSFERRED from Respondent to Complainant.
David A. Einhorn, Panelist
Dated: December 23, 2016
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