Kellogg North America Company v. tian dai / daitian
Claim Number: FA1612001705888
Complainant is Kellogg North America Company (“Complainant”), Michigan, USA. Respondent is tian dai / daitian (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <kelloggs.store> and <kelloggs.link>, registered with Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn).
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.
Sebastian M W Hughes as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 5, 2016; the Forum received payment on December 5, 2016.
On December 6, 2016, Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) confirmed by e-mail to the Forum that the <kelloggs.store> and <kelloggs.link> domain names are registered with Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) and that Respondent is the current registrant of the names. Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) has verified that Respondent is bound by the Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) 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 December 12, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 3, 2017 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.store, and postmaster@kelloggs.link. Also on December 12, 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.
A timely Chinese and English language Response was received and determined to be complete on December 31, 2016.
On January 12, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sebastian M W Hughes 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.
Complainant requests that the domain names be transferred from Respondent to Complainant.
A. Complainant
Complainant was founded in 1906 and is the owner of the well-known trademark KELLOGG’S (the “Trademark”), registered and used in numerous jurisdictions worldwide, including in China, in respect of Complainant’s breakfast foods, snacks, frozen foods and beverages, for many years.
The domain names comprise the Trademark in its entirety.
Respondent has no rights or legitimate interests in the domain names, which have been passively held.
Given the notoriety of the Trademark, Respondent must have known of Complainant and of its rights in the Trademark when Respondent registered the domain names. Respondent’s passive use of the domain names amounts to bad faith registration and use.
B. Respondent
Respondent asserts rights in the domain names by simple virtue of having registered them; denies bad faith registration and use; asserts that he intends to make use of the domain names; and requests reimbursement of registration expenses if the domain names are to be transferred to Complainant.
FINDINGS
Complainant has established all the elements entitling it to transfer of the domain names.
DISCUSSION
Language of the Proceedings
Pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the Chinese language Complaint and Commencement Notification, and through Respondent having filed a Response in both Chinese and English, and determines that the remainder of the proceedings may be conducted in English.
Substantive Decision
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.
Identical and/or Confusingly Similar
The domain names are identical to the Trademark.
Rights or Legitimate Interests
Respondent has failed to demonstrate any rights or legitimate interests in the domain names. The undisputed evidence shows that the domain names have never been used.
Registration and Use in Bad Faith
In all the circumstances, and given in particular the global notoriety of the Trademark, the Panel has no hesitation in concluding that Respondent’s registration and passive use of the domain names constitutes bad faith registration and use.
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 <kelloggs.store> and <kelloggs.link> domain names be TRANSFERRED from Respondent to Complainant.
Sebastian M W Hughes, Panelist
Dated: January 25, 2017
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