American Culinary ChefsBest
v. Vertical Axis, Inc c/o Domain Adminstrator
Claim Number: FA0705000991959
PARTIES
Complainant is American Culinary ChefsBest (“Complainant”), represented by Jerry
T. Gulley, of American Culinary ChefsBest, Levi's
Plaza,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <chefsbest.com>, registered with Nameview,
Inc.
PANEL
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.
Hon. Carolyn M. Johnson, (Ret.), Diane Cabell, David P. Miranda, Chair,
as Panelists.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
electronically on May 22, 2007; the
National Arbitration Forum received a hard copy of the Complaint on May 30, 2007.
On June 13, 2007, Nameview, Inc. confirmed by e-mail to the
National Arbitration Forum that the <chefsbest.com> domain name is
registered with Nameview, Inc. and that the
Respondent is the current registrant of the name. Nameview, Inc.
has verified that Respondent is bound by the Nameview,
Inc. registration agreement and has thereby agreed to resolve
domain-name disputes brought by third parties in accordance with ICANN’s
Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On June 19, 2007, a Notification
of Complaint and Commencement of Administrative Proceeding (the “Commencement
Notification”), setting a deadline of July 9, 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@chefsbest.com by e-mail.
On June 27, 2007, Respondent requested, pursuant to Supplemental Rule 6, an extension of 20 days to respond to the Complaint due to extenuating circumstances. On June 27, 2007, the National Arbitration Forum, with Complainant’s consent, granted Respondent an extension and set a new deadline of July 23, 2007 for a filing of a Response.
A timely Response was received and determined to be complete on July 23, 2007.
On August 1, 2007, pursuant to Respondent’s
request to have the dispute decided by a three-member Panel, the National
Arbitration Forum appointed Hon. Carolyn M. Johnson, (Ret.), Diane
Cabell, David P. Miranda, Chair, as Panelists.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
Complainant is the owner of the registered trademark CHEFSBEST for
services related to food and beverage products and services. Registration No. 3,211,763, with a filing
date of August 21,2003, and a registration date of February 20, 2007. Complainant seeks transfer of the domain name
<chefsbest.com>
registered
by Respondent on May 22, 2006.
Complainant contends that ChefsBest is an independent judging
organization recogizing and honoring
B. Respondent
Respondent does not contest the disputed domain is identical or
confusingly similar to Complainant’s mark.
Respondent contends that it has used the domain name in connection with bona fide goods and services in the
nature of pay-per-click ads. Respondent
contends that it registered the disputed domain because it incorporates the
descriptive term “chef’s best,” and did not register the disputed domain with
Complainant’s trademark in mind, had no knowledge of Complainant, its business,
its website or trademarks when it registered the disputed domain. Respondent contends that it did not register
the disputed domain with the intent to sell to Complainant, disrupt
Complainant’s business or to confuse consumers seeking to find Complainant’s
website, and that Complainant has failed to meet its burden of proving bad
faith registration and use. Respondent
contends a finding of bad faith is not required merely because Respondent has
been found in violation of the UDRP on other occasions, and points out that
there are many UDRP decisions which were decided in Respondent’s favor.
FINDINGS
The Panel finds that the domain registered by
Respondent is identical or confusingly similar to a trademark or service mark
to which Complainant has rights, and that Respondent has no rights or
legitimate interests in the domain name.
The Panel finds that Complainant has failed to establish that the domain
name was registered and is being used in bad faith in accordance with UDRP
policy.
DISCUSSION
Paragraph 15(a) of the Rules for Uniform Domain
Name Dispute Resolution Policy (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 the 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 the Respondent
is identical or confusingly similar to a trademark or service mark in which the
Complainant has rights;
(2) the 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 registered the CHEFSBEST mark with the United States Patent and Trademark Office (“USPTO”). The USPTO record for Registration Number 3,211,763 lists a filing date of August 21, 2003, and a registration date of February 20, 2007. Respondent registered the <chefsbest.com> domain name on May 22, 2006. Complainant’s rights in the CHEFSBEST mark predate Respondent’s registration of the disputed domain name, and Complainant has established rights in the mark pursuant to Policy ¶ 4(a)(i). See Towmaster, Inc. v. Hale, FA 973506 (Nat. Arb. Forum June 4, 2007) (finding that a complainant’s rights in a registered trademark date back to the filing date); see also Hershey Co. v. Reaves, FA 967818 (Nat. Arb. Forum June 8, 2007) (holding that the complainant established rights in the KISSES mark that predated the respondent’s registration of the disputed domain name because the complainant filed for a trademark registration for the mark before the respondent registered the disputed domain name, even though the USPTO did not issue the registration until after the respondent’s registration).
Respondent does not contest Complainant’s allegations with respect to this element of the Policy.
Complainant maintains that nothing beyond
the disputed domain name itself identifies Respondent as being commonly known
by the <chefsbest.com> domain
name. The WHOIS registration information
reveals Respondent to be “Vertical Axis, Inc c/o Domain Adminstrator.” A majority of the Panel finds there is no
evidence that Respondent or its products or services are commonly known by the
domain name at issue and, therefore, Respondent cannot establish rights or
legitimate interests pursuant to Policy ¶ 4(c)(ii). See St. Lawrence Univ. v. Nextnet Tech, FA
881234 (Nat. Arb. Forum Feb. 21, 2007) (concluding a respondent has no rights
or legitimate interests in a disputed domain name where there is no evidence in
the record indicating that the respondent is commonly known by the disputed
domain n name); see also M. Shanken Commc’ns v.
WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006)
(finding that the respondent was not commonly known by the
<cigaraficionada.com> domain name under Policy ¶ 4(c)(ii) based on the
WHOIS information and other evidence in the record).
Complainant asserts
that Respondent has “populated the disputed domain with minimal content,
specifically in the forms of links associated with the complainants ChefsBest mark.” Respondent does not contend that it is known
by the name, but rather is profiting from click-through fees it earns each time
an Internet user clicks on one of these links.
The Panel does not consider such use to constitute a bona fide offering of goods or services
or a legitimate noncommercial or fair use.
A majority of the Panel finds Respondent has failed to establish rights
or legitimate interests under Policy ¶¶ 4(c)(i) or 4(c)(iii). See eHealthInsurance Servs., Inc. v. Hasan, FA 982289 (Nat. Arb. Forum July 9, 2007) (concluding
that the use of a confusingly similar domain name to operate a pay-per-click
site, presumably for commercial gain, was not a bona fide offering of goods or services pursuant to Policy ¶
4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶
4(c)(iii)); see also Disney Enters., Inc. v. Kamble, FA
918556 (Nat. Arb. Forum Mar. 27, 2007) (holding that the operation of a
pay-per-click website at a confusingly similar domain name was not 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)).
Complainant alleges that Respondent
has been the subject of several previous UDRP proceedings in which panels have
ordered the respondent to transfer domain names.
Complainant further asserts that
some of the links on Respondent’s website at the <chefsbest.com> domain name resolve to the websites of
Complainant’s competitors. Proof of such
conduct causing disruption of Complainant’s business could amount to bad faith
registration and use according to Policy ¶ 4(b)(iii). See Red Hat, Inc. v. Haecke, FA
726010 (Nat. Arb. Forum July 24, 2006) (finding that the respondent engaged in
bad faith registration and use pursuant to Policy ¶ 4(b)(iii) by using the
disputed domain names to operate a commercial search engine with links to the
products of the complainant and to complainant’s competitors, as well as by
diverting Internet users to several other domain names); see also Tesco Pers. Fin. Ltd.
v. Domain Mgmt. Servs., FA
877982 (Nat. Arb. Forum Feb. 13, 2007) (concluding that the use of a
confusingly similar domain name to attract Internet users to a directory
website containing commercial links to the websites of a complainant’s
competitors represents bad faith registration and use under Policy ¶
4(b)(iii)). However, Complainant fails to submit sufficient proof to support its
claim or to support a finding of bad faith.
Complainant has only submitted an allegation of bad faith in an unsigned
Complaint without any supporting factual support or documentation sufficient to
establish bad faith under the Policy ¶ 4(b).
Respondent asserts
that it registered the <chefsbest.com>
domain name when it expired in 2006 and that it did not have Complainant’s
CHEFSBEST mark in mind. Respondent
further argues that it had no knowledge of Complainant when registering the
disputed domain name. Complainant has failed to establish
that Respondent has violated any of the bad faith factors listed in Policy ¶
4(b), or that Respondent has acted in bad faith in registration and use of this
domain name.
DECISION
Having failed to establish one of the three elements required under the
ICANN Policy, the Panel concludes that relief shall be DENIED.
Accordingly, it is Ordered that the <chefsbest.com> domain name NOT
BE TRANSFERRED at this time.
Hon. Carolyn M. Johnson, (Ret.), Diane
Cabell, David P. Miranda, Chair, as Panelists
Dated: August 22, 2007
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