Adam Kay / You Love Fruit Inc. v. Hannah Krausz / Pure Bites
Claim Number: FA2105001945082
Complainant is Adam Kay / You Love Fruit Inc. (“Complainant”), represented by Issac Cwibeker of Novak Juhase & Stern LLP, New York, USA. Respondent is Hannah Krausz / Pure Bites (“Respondent”), New York, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <youlovefruit.com>, <youluvfruit.com>, <youluvveggies.com> and <youloveveggies.com> (“the Domain Names”), 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.
Alan L. Limbury, as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 14, 2021. The Forum received payment on May 14, 2021.
On May 17, 2021, GoDaddy.com, LLC confirmed by e-mail to the Forum that the Domain Names are registered with GoDaddy.com, LLC and that Respondent is the current registrant of the names. 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 17, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 7, 2021 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@youlovefruit.com, postmaster@youluvfruit.com, postmaster@youluvveggies.com and postmaster@youloveveggies.com. Also on May 17, 2021, 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 11, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Alan L. Limbury 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 Names be transferred from Respondent to Complainant.
PRELIMINARY ISSUE: RE-FILED COMPLAINT
Complainant has quite properly disclosed that, in Adam Kay /You Love Fruit Inc. v. Hannah Krausz / Pure Bites, FA1910498 (Forum September 30, 2020), the panel denied relief to Complainant against the same Respondent regarding the domain name <youlovefruit.com>, finding that Complainant provided no evidence relating to the identity of Respondent, such as past dealings with Complainant, or connection with Complainant’s businesses, such that it would be reasonable to infer that Respondent was aware of Complainant at the time of registration. The panel noted that:
“… in the event that further information arises that suggests the motives of the Respondent in registering or using the Domain Name related to the Respondent’s awareness of the Complainant’s YOU LOVE FRUIT mark as opposed to the descriptive meaning of the words there may be grounds to consider a refiled complaint, subject to the applicable criteria.”
Those criteria are set out in the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Jurisprudential Overview 3.0”) as follows:
“4.18 Under what circumstances would a refiled case be accepted?
A refiled case is one in which a newly-filed UDRP case concerns identical domain name(s) and parties to a previously-decided UDRP case in which the prior panel denied the complaint on the merits. (The previous case may or may not be from another UDRP provider.) As the UDRP itself contains no appeal mechanism, there is no express right to refile a complaint; refiled complaints are exceptional.
Panels have accepted refiled complaints only in highly limited circumstances such as (i) when the complainant establishes that legally relevant developments have occurred since the original UDRP decision, (ii) a breach of natural justice or of due process has objectively occurred, (iii) where serious misconduct in the original case (such as perjured evidence) that influenced the outcome is subsequently identified, (iv) where new material evidence that was reasonably unavailable to the complainant during the original case is presented, or (v) where the case has previously been decided (including termination orders) expressly on a “without prejudice” basis.
…
In certain highly limited circumstances (such as where a panel found the evidence in a case to be finely balanced, and opined that it may be possible for future respondent behavior to cast a different light on a panel’s assessment of bad faith), a panel may record in its decision that in the event certain conditions would be met, acceptance of a refiled complaint may be justified. The extent to which any such conditions have been met would bear on determining whether a refiled complaint should be accepted prima facie by the provider, and subsequently by the panel.”
In Free Bridge Auto Sales Inc. v. Larry Ross, FA1272427, (Forum August 12, 2009), the three-member panel said:
“Typically, complaints may not be resubmitted for relief subsequent to their denial due to res judicata principles unless the complainant meets its high burden of demonstrating the need for such additional review. See, e.g., Creo Prods. Inc. v. Website in Dev., D2000-1490 (WIPO Jan. 19, 2001) (finding that the burden of establishing that a second complaint should be entertained is “high”). Several criteria have been set forth for determining whether a complaint may be refiled. See Grove Broad. Co. Ltd. v. Telesystems Commc’ns Ltd., D2000-0703 (WIPO Nov. 10, 2000) (noting, and subsequently applying to the UDRP, the four common-law grounds for the rehearing or reconsideration of a previously filed decision as (1) serious misconduct on the part of a judge, juror, witness or lawyer; (2) perjured evidence having been offered to the court; (3) the discovery of credible and material evidence which could not have been reasonably foreseen or known at trial; or (4) a breach of natural justice).”
In the present Complaint, Complainant has provided evidence not produced in support of the previous Complaint to show that Respondent was well aware of Complainant and its plans to start a company called YOU LOVE FRUIT and was engaged by Complainant in 2013 to register the <youlovefruit.com> domain name as well as the other three domain names the subject of these proceedings for use by that company. However, that evidence was clearly reasonably foreseeable and available to Complainant at the time of filing the previous Complaint. There are no other circumstances that would justify a refiling.
Accordingly, as to the <youlovefruit.com> domain name, the Panel finds that the Complaint is barred under res judicata principles by the earlier decision.
A. Complainant
Complainant produces and manufactures fruit and vegetable products. Complainant has rights in the YOU LOVE FRUIT mark based on registration of the mark with the United States Patent and Trademark Office (“USPTO”). Respondent’s <youlovefruit.com> domain name is confusingly similar to Complainant’s mark.
Respondent lacks rights and legitimate interests in the Domain Names. Respondent is a former employee of Complainant, who was directed to register the Domain Names on Complainant’s behalf but appropriated the Domain Names for herself instead. Respondent is not commonly known by the Domain Names. Respondent does not use the Domain Names for any bona fide offering of goods or services, nor for any legitimate noncommercial or fair use, since they currently resolve to inactive websites.
Respondent registered and uses the Domain Names in bad faith. Respondent was hired by Complainant to register the Domain Names on Complainant’s behalf but instead registered them in her own name and has since used them as leverage to obtain 40% of the stock in Complainant’s company. Respondent engages in cybersquatting to prevent Complainant from reflecting its own mark in a domain name. Additionally, Respondent uses the Domain Names to display inactive websites displaying links to Respondent’s own website where she sells competing products. Respondent had actual knowledge of Complainant’s rights in the YOU LOVE FRUIT mark based on the fact that Respondent assisted Complainant in creating Complainant’s “You Love Fruit” company and was hired by Complainant to obtain the four domain names currently in dispute.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel dismisses the Complaint in relation to the <youlovefruit.com> domain name.
Complainant has failed to establish all the elements entitling it to relief in relation to the <youluvveggies.com> and <youloveveggies.com> domain names.
Complainant has established all the elements entitling it to relief in relation to the <youluvfruit.com> domain name.
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”).
Complainant has shown that it has rights in the YOU LOVE FRUIT mark based on registration of the mark with the USPTO, Reg. No. 4,786,666 registered Aug. 4, 2015.
The Panel finds Respondent’s <youluvfruit.com> domain name to be confusingly similar to Complainant’s mark since it consists of a minor mis-spelling of that mark together with the inconsequential generic top-level domain (“gTLD”) “.com”, which may be ignored.
Complainant has established this element in relation to the <youluvfruit.com> domain name.
The Panel finds Respondent’s <youluvveggies.com> and <youloveveggies.com> domain names to be neither identical nor confusingly similar to Complainant’s YOU LOVE FRUIT trademark. The mark consists of three descriptive words and its distinctiveness is in their combination, the word “fruit” being dominant. The word “veggies”, commonly understood as a reference to vegetables, is different from the word “fruit” and its use in these two domain names instead of the word “fruit” sufficiently distinguishes the domain names from Complainant’s mark.
Complainant has failed to establish this element in relation to the <youluvveggies.com> and <youloveveggies.com> domain names. Accordingly, it is unnecessary to consider the remaining elements in relation to these two domain names. What follows relates only to the <youluvfruit.com> domain name.
(i) before any notice to Respondent of the dispute, the use by Respondent of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) Respondent (as an individual, business or other organization) has been commonly known by the domain name, even if Respondent has acquired no trademark or service mark rights; or
(iii) Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.
According to the Registrar, the <youluvfruit.com> domain name was registered on June 27, 2018. Complainant has shown that Respondent forwarded to Complainant a GoDaddy order confirmation in relation to the sale of the <youluvfruit.com> domain name dated October 15, 2013 (Complaint Exhibit E), which corresponds to the time when Complainant has provided sworn evidence that Respondent was aware of Complainant’s intention to start a company called “You Love Fruit” and that Complainant at that time hired Respondent to register the domain name on behalf of Complainant for that Company’s use. The domain name currently resolves to a parking page displaying advertising links to other websites.
These circumstances, together with Complainant’s assertions, are sufficient to constitute a prima facie showing of absence of rights or legitimate interests in respect of the <youluvfruit.com> domain name on the part of Respondent. The evidentiary burden therefore shifts to Respondent to show that she does have rights or legitimate interests in that domain name. See Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum April 12, 2014). Respondent has made no attempt to do so.
The Panel finds that Respondent has no rights or legitimate interests in respect
of the <youluvfruit.com> domain name.
Complainant has established this element.
Complainant has provided sworn evidence that he engaged Respondent to register the <youluvfruit.com> domain name on behalf of Complainant but that, unbeknownst to Complainant, she did so in her own name and has since used it as leverage to obtain 40% of the stock in Complainant’s company.
In the absence of a Response, this evidence establishes that Respondent registered and is using the <youluvfruit.com> domain name in bad faith.
As to the <youlovefruit.com> domain name, having found that Complainant’s re-filing is precluded on the basis of res judicata, the Panel concludes that this re-filing be dismissed and that relief shall be DENIED.
As to the <youluvveggies.com> and <youloveveggies.com> domain names, Complainant having not established all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.
As to the <youluvfruit.com> domain name, Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <youlovefruit.com>, <youluvveggies.com>, and <youloveveggies.com> domain names REMAIN WITH Respondent and that the <youluvfruit.com> domain name be TRANSFERRED from Respondent to Complainant.
Alan L. Limbury, Panelist
Dated: June 14, 2021
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