King Ranch IP, LLC v. E Miller
Claim Number: FA1805001785596
Complainant is King Ranch IP, LLC (“Complainant”), represented by Christopher Weimer of Norton Rose Fulbright US LLP, Texas, USA. Respondent is E Miller (“Respondent”), Arizona, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <kingranchbbq.com>, registered with GoDaddy.com, 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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 8, 2018; the Forum received payment on May 8, 2018.
On May 9, 2018, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <kingranchbbq.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, 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 May 14, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 4, 2018 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@kingranchbbq.com. Also on May 14, 2018, 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 June 5, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco 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
Complainant contends as follows:
Complainant is the owner of the KING RANCH mark, which it uses, inter alia, in connection with its barbecue related goods, services, and events.
Complainant has rights in the KING RANCH mark through its trademark registrations with the United States Patent and Trademark Office (“USPTO”).
Respondent’s <kingranchbbq.com> domain name is confusingly similar to Complainant’s KING RANCH mark as Respondent merely adds the generic term “bbq” and a “.com” generic top-level domain (“gTLD”) to the mark.
Respondent has no rights or legitimate interests in the <kingranchbbq.com> domain name. Respondent is not authorized, licensed, or otherwise permitted to use Complainant’s KING RANCH mark and is not commonly known by the at-issue domain name. Additionally, Respondent is not using the domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, the disputed domain name resolves in an inactive webpage.
Respondent registered and is using the <kingranchbbq.com> domain name in bad faith as Respondent is inactively holding the disputed domain name. Furthermore, Respondent had actual and/or constructive notice of Complainant’s rights in the KING RANCH mark prior to registration.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has trademark rights in the KING RANCH mark.
Respondent registered the at-issue domain name after Complainant acquired rights in KING RANCH.
Respondent holds the at-issue domain name inactively.
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.”).
The at-issue domain is confusingly similar to a trademark in which Complainant has rights.
Complainant’s USPTO registration of its KING RANCH mark establishes Complainant’s rights in such mark for the purposes of Policy 4(a)(i). 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)).
The at-issue domain name contains Complainant’s entire KING RANCH trademark, less its space, followed by the descriptive term “bbq” and the top level domain name “.com.” The slight differences between the <kingranchbbq.com> domain name and Complainant’s trademark are insufficient to distinguish the domain name from the trademark under Policy ¶ 4(a)(i). In fact, the inclusion of “bbq” in the domain name only adds to any confusion caused by incorporating Complainant’s KING RANCH mark into the domain name. Complainant’s trademark is used in-part with regard to barbecue related goods and services; the term “bbq” is thus suggestive of the KING RANCH trademark. Therefore, the Panel finds that the <kingranchbbq.com> domain name is confusingly similar to Complainant’s KING RANCH mark. See Am. Express Co. v. MustNeed.com, FA 257901 (Forum June 7, 2004) (finding the respondent’s <amextravel.com> domain name confusingly similar to Complainant’s AMEX mark because the “mere addition of a generic or descriptive word to a registered mark does not negate” a finding of confusing similarity under Policy ¶ 4(a)(i)); see also, HomeVestors of Am., Inc. v. Sean Terry, FA 1523266 (Forum Nov. 11, 2013) (“[T]he Panel notes that panels have previously held that a domain name’s elimination of spaces found in the complainant’s mark and addition of a gTLD such as “.com” do not sufficiently differentiate the domain name from the complainant’s mark for the purposes of a confusing similarity analysis under Policy ¶ 4(a)(i).”).
Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, absent evidence of Policy ¶ 4(c) circumstances Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at-issue domain name.
WHOIS information for <kingranchbbq.com> lists “E Miller” as the domain name’s registrant and there is nothing in the record that persuasively indicates that Respondent is otherwise known by the <kingranchbbq.com> domain name. Given the foregoing the Panel finds that Respondent is not commonly known by the at-issue domain name pursuant to Policy ¶ 4(c)(iii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Additionally, Respondent makes no material demonstrable preparations to use the <kingranchbbq.com> domain name. The domain name simply links to a parking page. Holding a confusingly similar domain name inactively, as does Respondent, is not indicative of any bona fide offering of goods or services under Policy ¶¶ 4(c)(i), nor of a non-commercial or fair use under Policy ¶¶ 4(c)(iii). See Activision Blizzard, Inc. / Activision Publishing, Inc. / Blizzard Entertainment, Inc. v. Cimpress Schweiz GmbH, FA 1737429 (Forum Aug. 3, 2017) (“Complainant insists that Respondent has made no demonstrable preparations to use the disputed domain name. When Respondent is not using the disputed domain name in connection with an active website, the Panel may find that Respondent is not using the disputed domain name for a bona fide offering of goods or services… As Respondent has not provided a response to this action, Respondent has failed to meet its burden regarding proof of any rights or legitimate interest in the disputed domain.”).
Given the forgoing, Complainant satisfies its initial burden under Policy ¶ 4(a)(ii) and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name.
Respondent’s <kingranchbbq.com> domain name was registered and used in bad faith. As discussed below without limitation, bad faith circumstances are present which compel the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4(a)(iii) of the Policy.
First as mentioned above regarding rights and interests, Respondent fails to make active use of the <kingranchbbq.com> domain name. Screen shots presented by Complainant show that an internet user browsing to the at-issue domain name finds no substantive content other than a third party sponsored parking page containing food related links. Holding a confusingly similar domain name in this manner evidences bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See VideoLink, Inc. v. Xantech Corporation, FA1503001608735 (Forum May 12, 2015) (“Failure to actively use a domain name is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”); see also, Ceyx Technologies v. Ceyx.Com, D2001-0681 (WIPO July 9, 2001) (Respondent’s “parking” of domain name with the knowledge that it infringed Complainant’s trademark constituted evidence of bad faith.)
Furthermore, Respondent registered the <kingranchbbq.com> domain name knowing that Complainant had trademark rights in the KING RANCH mark. Respondent’s prior knowledge is evident from the notoriety of Complainant’s trademark and from Respondent’s overt incorporation of the KING RANCH trademark in the at-issue domain name. Given the forgoing, it is clear that Respondent intentionally registered the at-issue domain name precisely to improperly exploit its trademark value, rather than for some benign reason. Respondent’s prior knowledge of Complainant's trademark further indicates that Respondent registered and used the <kingranchbbq.com> domain name in bad faith pursuant to Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had "actual knowledge of Complainant's mark when registering the disputed domain name").
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <kingranchbbq.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: June 6, 2018
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