Kellogg North America Company v. danty Crime / Danty LLC
Claim Number: FA2001001879703
Complainant is Kellogg North America Company (“Complainant”), United States. Respondent is danty Crime / Danty LLC (“Respondent”), Nigeria.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <kelllogg.com>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on January 21, 2020; the Forum received payment on January 21, 2020.
On January 22, 2020, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <kelllogg.com> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com 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 January 22, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 11, 2020 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@kelllogg.com. Also on January 22, 2020, 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 February, 13, 2020 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 states that it is a multinational food manufacturing company founded in 1906 and with current annual sales in excess of $13 billion. Complainant sells breakfast foods, snacks, frozen foods and beverages in more than 180 countries. Complainant has rights in the KELLOGG’S mark based upon registration in the United States in 1917. The mark is registered elsewhere around the world and it is famous.
Complainant alleges that the disputed domain name is confusingly similar to its mark as it incorporates the entire KELLOGG’S mark, merely removing the apostrophe and letter “’s” and adding the letter “l” and the “.com” generic top-level domain (“gTLD”). Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent does not have rights or legitimate interests in the disputed domain name because Respondent is not commonly known by the disputed domain name and is not authorized or permitted to use Complainant’s KELLOGG’S mark. Additionally, Respondent fails to use the disputed domain name in connection to a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent fails to make an active use the disputed domain name. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith because it fails to make an active use of the disputed domain name. Further, the disputed domain name can only be taken as intending to cause confusion among internet users as to the source of the disputed domain name, and thus, it must be considered as having been registered and used in bad faith. Complainant sent a cease and desist letter to Respondent, to which Respondent failed to respond or comply. Additionally, Respondent engaged in typosquatting behavior. Finally, Respondent had actual knowledge of Complainant’s rights in the KELLOGG’S mark prior to the registration of the disputed domain name. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark KELLOGG and uses it to market food products around the world. The mark is famous.
Complainant’s rights in its mark date back to 1917.
The disputed domain name was registered in 2019.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain name is not being used.
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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The disputed domain name is a misspelling of Complainant’s KELLOGG’S mark created by removing the apostrophe and letter “s,” and adding a letter “l” and the “.com” gTLD. Misspelling of a complainant’s mark, either by adding or removing letters, and adding a gTLD may not sufficiently mitigate any confusing similarity between a disputed domain name and mark under Policy ¶ 4(a)(i). See Am. Online, Inc. v. David, FA 104980 (Forum Apr. 10, 2002) (“The misspelling of a famous mark does not diminish the confusingly similar nature between the marks and the disputed domain names.”); see also Trip Network Inc. v. Alviera, FA 914943 (Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). Accordingly, the Panel finds that the <kelllogg.com> domain name is confusingly similar to Complainant’s KELLOGG’S mark under Policy ¶ 4(a)(i).
Respondent is not authorized to use Complainant’s KELLOGG’S mark. Respondent is not commonly known by the disputed domain name: where a response is lacking, WHOIS information may support a finding that a respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name). Here, the WHOIS information of record lists the registrant as “Danty Crime / Danty LLC”. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Respondent does not make any active use the disputed domain name. Failure to make active use of a domain name does constitute as a bona fide offering of goods or services or a legitimate noncommercial or fair use pursuant to Policy ¶¶ 4(c)(i) or (iii). See Bloomberg L.P. v. SC Media Servs. & Info. SRL, FA 296583 (Forum Sept. 2, 2004) (“The Panel finds that the [failure to make an active use] of a domain name that is identical to Complainant’s mark is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii).”). Accordingly, the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
The disputed domain name is not being used. According to paragraph 3.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (WIPO Jurisprudential Overview 3.0): “From the inception of the UDRP, panelists have found that the non-use of a domain name (including a blank or “coming soon” page) would not prevent a finding of bad faith under the doctrine of passive holding. While panelists will look at the totality of the circumstances in each case, factors that have been considered relevant in applying the passive holding doctrine include: (i) the degree of distinctiveness or reputation of the complainant’s mark, (ii) the failure of the respondent to submit a response or to provide any evidence of actual or contemplated good-faith use, (iii) the respondent’s concealing its identity or use of false contact details (noted to be in breach of its registration agreement), and (iv) the implausibility of any good faith use to which the domain name may be put.”
In the present case, Complainant’s trademark is famous. It is difficult to envisage any use of the disputed domain name that would not violate the Policy, see Morgan Stanley v. TONY / shentony, FA 1637186 (Forum Oct. 10, 2015) (“Respondent registered the disputed domain name [MORGANSTANLEY.ONLINE] in bad faith because . . . it is difficult to envisage any use of the disputed domain name that would not violate the Policy”); see also Singapore Airlines Ltd. v. European Travel Network, D2000-0641 (WIPO Aug. 29, 2000) (where selection of disputed domain name is so obviously connected to complainant’s well-known trademark, use by someone with no connection with complainant suggests opportunistic bad faith); see also Starwood Hotels & Resorts Worldwide, Inc., Sheraton Int’l IP, LLC, Westin Hotel Mgmt., L.P. v. Jingjing Tang, D2014-1040 (WIPO Aug. 19, 2014) (“The Panel finds that the [WESTIN] Marks are not such that could legitimately be adopted by traders other than for the purpose of creating an impression of an association with Complainant. Thus, the Panel concludes that the disputed domain names were registered in bad faith”).
There has been no response to the Complaint. Given these circumstances, the Panel finds that, in this particular case, a finding of bad faith use can be inferred even though the disputed domain name is not being actively used. See Telstra Corporation Limited v. Nuclear Marshmallows, D2000-0003 (WIPO Feb. 18, 2000).
Further, as already noted, the disputed domain name is a mere misspelling of Complainant’s mark, that is, it constitutes typosquatting. This can evince bad faith under Policy ¶ 4(a)(iii). See Adorama, Inc. v. Moniker Privacy Services, FA1503001610020 (Forum May 1, 2015) (“Respondent has also engaged in typosquatting, which is additional evidence of bad faith registration and use under Policy ¶ 4(a)(iii). Respondents who capitalize on common typing errors engage in bad faith registration under Policy ¶ 4(a)(iii).”). Thus, the Panel finds that Respondent registered and uses the domain name in bad faith per 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 <kelllogg.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: February 13, 2020
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