General Mills, Inc. v. Express Personnel Advertising
Claim Number: FA0702000921290
Complainant is General Mills, Inc. (“Complainant”), represented by Carrie
L. Johnson, of Fulbright & Jaworski, 2100 IDS
Center,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <fruitgushers.com>, registered with Enom, 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.
Judge Ralph Yachnin as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On February 23, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 15, 2007 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@fruitgushers.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration 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 makes the following assertions:
1. Respondent’s <fruitgushers.com> domain name is identical to Complainant’s FRUIT GUSHERS mark.
2. Respondent does not have any rights or legitimate interests in the <fruitgushers.com> domain name.
3. Respondent registered and used the <fruitgushers.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, General Mills,
Inc., sells fruit-based snack foods under the FRUIT GUSHERS mark, which
Complainant has registered with the United States Patent and Trademark Office
(“USPTO”) (Reg. No. 2,141,941 issued March 10, 1998). Complainant sells its FRUIT GUSHERS brand
snacks in retail stores around the world and averages over $60 million per year
in sales of the snacks.
Respondent, Express Personnel
Advertising, registered the <fruitgushers.com> domain name
on
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."
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.”).
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.
Complainant has established rights in the FRUIT GUSHERS mark
pursuant to Policy ¶
4(a)(i) through its registration of the mark with the USPTO. See
Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum
The <fruitgushers.com>
domain name is identical to Complainant’s FRUIT GUSHERS mark. The disputed domain name fully incorporates
Complainant’s mark, eliminates the space between the terms, and adds the
generic top-level domain “.com.” Since
these alterations are purely functional, they are largely irrelevant to Policy
¶ 4(a)(i) analysis. Therefore, the Panel finds that Complainant’s mark and the
disputed domain name are identical under Policy ¶ 4(a)(i). See
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent has no rights or
legitimate interests in the <fruitgushers.com>
domain name. Complainant has the intitial burden of proof
in asserting that Respondent has no rights or legitimate interests in the
domain name. Once Complainant makes a prima facie case under Policy ¶ 4(a)(ii), the burden then
shifts to Respondent to show that it does have rights or legitimate
interests. See Do
The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding
that once the complainant asserts that the respondent has no rights or
legitimate interests with respect to the domain, the burden shifts to the
respondent to provide “concrete evidence that it has rights to or legitimate
interests in the domain name at issue”); see
also Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO
Nov. 28, 2000) (finding that, under certain circumstances, the mere assertion
by the complainant that the respondent has no right or legitimate interest is
sufficient to shift the burden of proof to the respondent to demonstrate that
such a right or legitimate interest does exist).
Respondent’s failure to answer the Complaint raises a
presumption that Respondent has no rights or legitimate interests in the
disputed domain name. See Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum Dec. 31, 2002) (“Respondent's
failure to respond not only results in its failure to meet its burden, but also
will be viewed as evidence itself that Respondent lacks rights and legitimate
interests in the disputed domain name.”); see
also Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum
Respondent is using the <fruitgushers.com> domain name, which is
identical to Complainant’s FRUIT GUSHERS mark, to divert Complainant’s customers and potential
customers to a website which displays links to other websites that sell
products that compete with Complainant.
Such use of the disputed domain name does not constitute a bona fide offering of goods and services pursuant to Policy ¶ 4(c)(i), or a legitmate
noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii).
Complainant asserts that
Respondent used Complainant’s FRUIT GUSHERS
mark without Complainant’s consent. Additionally,
Respondent’s WHOIS information, as well as other information in the record,
does not suggest that Respondent is commonly known by the <fruitgushers.com> domain name. Therefore, the Panel finds that Respondent is
not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See
Gallup, Inc. v. Amish Country Store,
FA 96209 (Nat. Arb. Forum
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent is using the <fruitgushers.com>
domain name, which is identical to Complainant’s FRUIT GUSHERS mark, to divert Internet users seeking
Complainant’s products to a website containing a directory of links to other
products, some of which compete with Complainant’s products. Respondent’s use of Complainant’s mark to
divert Internet users to Complainant’s competitors amounts to disruption of
Complainant’s business pursuant to Policy ¶ 4(b)(iii). See
EBAY, Inc. v. MEOdesigns, D2000-1368 (WIPO
Because Respondent is using the disputed domain name to
divert Internet users to several third-party websites, the Panel infers that
Respondent earns click-through revenues for each user successfully
diverted. Such use for Respondent’s own commercial gain is evidence of bad faith
registration and use pursuant to Policy ¶ 4(b)(iv).
The Panel finds that Complainant has 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 <fruitgushers.com> domain name be TRANSFERRED from Respondent to Complainant.
Judge Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated: March 30, 2007
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