Jetro Holdings, Inc. v.
UniOne
Claim Number: FA0705000995656
PARTIES
Complainant is Jetro Holdings, Inc.,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <restaurantdepot.us>, registered with
Go Daddy
Software, Inc.
PANEL
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.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
(the “Forum”) electronically on
On
On June 5, 2007, a Notification
of Complaint and Commencement of Administrative Proceeding (the “Commencement
Notification”), setting a deadline of June 25, 2007 by which Respondent could
file a Response to the Complaint, was transmitted to Respondent in compliance
with Paragraph 2(a) of the Rules for usTLD Dispute Resolution Policy (the
“Rules”).
Having received no Response from Respondent, the Forum transmitted to
the parties a Notification of Respondent Default.
On
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. Therefore,
the Panel may issue its decision based on the documents submitted and in
accordance with the Policy, the 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.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
1. Respondent’s <restaurantdepot.us> domain name is identical to Complainant’s RESTAURANT DEPOT mark.
2.
Respondent does not have any rights or
legitimate interests in the <restaurantdepot.us>
domain name.
3.
Respondent registered and used the <restaurantdepot.us> domain name in
bad faith.
B. Respondent failed to submit a Response in this proceeding.
FINDINGS
Complainant, Jetro Holdings, Inc., is a
leading cash and carry wholesale grocery and food service distributor. Through its forty-seven stores across the
Respondent registered the <restaurantdepot.us> domain name on
DISCUSSION
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 the 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 (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 or is being used in bad faith.
Given the similarity between the Uniform Domain Name Dispute Resolution
Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent
as applicable in rendering its decision.
Identical
and/or Confusingly Similar
Complainant asserts rights in the RESTAURANT DEPOT mark
through registration with the USPTO. The
Panel finds that Complainant’s registration and continuous subsequent use
satisfies the rights requirement for Policy ¶ 4(a)(i). See Metro.
Life Ins. Co. v. Bin g Glu, FA 874496 (Nat Arb. Forum
Respondent’s <restaurantdepot.us> domain name is identical to
Complainant’s REATAURANT DEPOT mark.
Respondent’s domain name contains Complainant’s mark in its entirety and
merely adds the country-code top-level domain “.us.” The Panel finds that the addition of a
top-level domain such as “.us” is irrelevant in determining whether a domain
name is identical or confusingly similar to a trademark under Policy ¶
4(a)(i). See Tropar Mfg. Co. v. TSB,
FA 127701 (Nat. Arb. Forum Dec. 4, 2002) (finding that since the addition of
the country-code “.us” fails to add any distinguishing characteristic to the
domain name, the <tropar.us> domain name is identical to the
complainant’s TROPAR mark); see also Gardline Surveys Ltd. v. Domain Fin. Ltd.,
FA 153545 (Nat. Arb. Forum
The Panel finds
that Policy ¶ 4(a)(i) has been satisfied.
Rights
or Legitimate Interests
Complainant contends that Respondent does not have rights or legitimate interests in the <restaurantdepot.us> domain name. Past panels have held that in certain circumstances, a complainant’s assertions may be sufficient to establish a prima facie case under Policy ¶ 4(a)(ii). This Panel finds that Complainant’s submission establishes a prima facie case, shifting the burden onto Respondent to set forth evidence of rights or legitimate interests pursuant to the Policy. See 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); see also Woolworths plc. v. Anderson, D2000-1113 (WIPO Oct. 10, 2000) (finding that, absent evidence of preparation to use the domain name for a legitimate purpose, the burden of proof lies with the respondent to demonstrate that it has rights or legitimate interests).
Complainant
contends that Respondent is using the <restaurantdepot.us>
domain name to operate a website that sells food service equipment and uniforms
in direct competition with Complainant’s products. The Panel finds that the use of a domain name
identical to Complainant’s mark for the purpose of offering competing services
is not a use in connection with a bona
fide offering of goods or services pursuant to Policy ¶ 4(c)(ii) or a legitimate
noncommercial or fair use pursuant to Policy ¶ 4(c)(iv). See Ameritrade Holdings Corp. v. Polanski,
FA 102715 (Nat. Arb. Forum Jan. 11, 2002) (finding that the respondent’s use of
the disputed domain name to redirect Internet users to a financial services
website, which competed with the complainant, was not a bona fide
offering of goods or services); see also Gardens Alive, Inc. v. D&S
Linx, FA 203126 (Nat. Arb. Forum Nov. 20,
2003) (finding that the respondent used a domain name for commercial benefit by
diverting Internet users to a website that sold goods and services similar to
those offered by the complainant and thus, was not using the name in connection
with a bona fide offering of goods or services nor a legitimate
noncommercial or fair use).
Complainant contends that Respondent is not
commonly known by the disputed domain name nor licensed to register domain
names featuring Complainant’s marks. Moreover,
Respondent has failed to submit evidence of any trademark rights associated
with the <restaurantdepot.us>
domain name. The WHOIS information for the <restaurantdepot.us>
domain name lists the registrant as “UniOne.”
Without evidence suggesting otherwise, the Panel finds that Respondent
has not established rights or legitimate interests in the <restaurantdepot.us>
domain name pursuant to Policy ¶ 4(c)(i) or pursuant to Policy ¶ 4(c)(iii). See IndyMac Bank F.S.B. v. Eshback,
FA 830934 (Nat. Arb. Forum Dec. 7, 2006) (finding that the respondent failed to
establish rights and legitimate interests in the <emitmortgage.com>
domain name as the respondent was not authorized to register domain names
featuring the complainant’s mark and failed to submit evidence of that it is
commonly known by the disputed domain name); see also Am. W.
Airlines, Inc. v. Paik, FA 206396 (Nat.
Arb. Forum
The Panel finds
that Policy ¶ 4(a)(ii) has been satisfied.
Registration
and Use in Bad Faith
Respondent is using the <restaurantdepot.us> domain name to operate a
website that sells competing food service equipment and uniforms. The Panel finds that Respondent’s competing
use of the disputed domain name is evidence of bad faith registration and use
pursuant to Policy ¶ 4(b)(iii). See EthnicGrocer.com, Inc. v. Unlimited
Latin Flavors, Inc., FA 94385 (Nat. Arb. Forum
Moreover,
Respondent’s commercial use of the <restaurantdepot.us>
domain name is likely to cause confusion among Internet users as to the source
and affiliation of the disputed domain name.
As such, the Panel finds this to be further evidence of Respondent’s bad
faith registration and use pursuant to Policy ¶ 4(b)(iv). See Computerized Sec. Sys., Inc. v. Hu,
FA 157321 (Nat. Arb. Forum June 23, 2003) (finding that the respondent’s use of
the <saflock.com> domain name to offer goods competing with the
complainant’s illustrates the respondent’s bad faith registration and use of
the domain name, evidence of bad faith registration and use pursuant to Policy
¶ 4(b)(iv)); see also Nokia Corp. v. Private, D2000-1271 (WIPO Nov. 3, 2000) (finding bad
faith registration and use pursuant to UDRP ¶ 4(b)(iv) where the domain name
resolved to a website that offered similar products as those sold under the
complainant’s famous mark).
The Panel finds that Policy ¶ 4(a)(iii) has been
satisfied.
DECISION
Having established all three elements required under the usTLD Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the restaurantdepot.us> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated: July 9, 2007
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