PurFoods, LLC v. Jesse Clark
Claim Number: FA2304002039924
Complainant is PurFoods, LLC (“Complainant”), represented by Allison E. Kerndt of Nyemaster Goode, P.C., Iowa, USA. Respondent is Jesse Clark (“Respondent”), represented by Brad Frazer of Hawley Troxell Ennis & Hawley LLP, Idaho, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <purfoods.org>, <momsmeals.org>, and <momsmeals.co>, 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.
Michael A. Albert as Panelist.
Complainant submitted a Complaint to Forum electronically on April 13, 2023; Forum received payment on April 13, 2023.
On April 13, 2023, GoDaddy.com, LLC confirmed by e-mail to Forum that the <purfoods.org>, <momsmeals.org>, and <momsmeals.co> 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 April 14, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 4, 2023 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@purfoods.org, postmaster@momsmeals.org, postmaster@momsmeals.co. Also on April 14, 2023, 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.
A timely Response was received and determined to be complete on May 4, 2023.
On May 8, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Michael A. Albert as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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.
Complainant requests that the domain names be transferred from Respondent to Complainant.
A. Complainant
Complainant is a food nutrition company that provides ready-made meals. Complainant asserts rights in the PURFOODS mark (e.g. Reg. No. 4,734,655, registered May 12, 2015) and the MOM’S MEALS mark (e.g. Reg. No. 2,430,824, registered February 27, 2001) based upon registration with the United States Patent and Trademark Office (“USPTO”).
The <purfoods.org> domain name is identical or confusingly similar to Complainant’s PURFOODS mark as it fully incorporates this mark with the addition of the generic top level domain (“gTLD”) “.org”. The <momsmeals.org> and <momsmeals.co> domain names are identical or confusingly similar to Complainant’s MOM’S MEALS mark because they fully incorporate the mark with the addition of the generic top-level domains (“gTLDs”) “.org” and “.co.”
Respondent lacks rights or legitimate interests in the disputed domain names. Respondent is not commonly known by the disputed domain names nor has Respondent been authorized by Complainant to use the PURFOODS or MOM’S MEALS marks. Additionally, Respondent has not used the disputed domain names in connection with a bona fide offering of goods or services. Rather, Respondent is intentionally misleading consumers searching for Complainant’s marks to its own website.
Respondent registered and uses the <purfoods.org>, <momsmeals.org>, and <momsmeals.co> domain names in bad faith. Respondent is diverting consumers to its own websites by creating a likelihood of confusion as to the source or affiliation of the disputed domain names.
B. Respondent
Jesse Clark, an employee of Homestyle Direct’s predecessor-in-interest, registered the disputed domain names. The entity that has responded to the Complaint is not Jesse Clark but rather Homestyle Direct, LLC. In that response,
Homestyle Direct, LLC states that Jesse Clark is no longer employed by Homestyle Direct, LLC, and that it is filing a Response at Complainant’s request to facilitate a transfer.
Specifically, in footnote 1 of its Response, Homestyle Direct LLC states that:
The named Respondent in the actual Complaint is Jesse Clark, a former employee of this answering entity Homestyle Direct, LLC’s predecessor-in-interest. Clark registered the Disputed Domain Names in his own name and they remain in his name to this day. But because Clark is no longer employed by Homestyle Direct, LLC, that entity is filing this Response at the Complainant’s request to facilitate a transfer. Homestyle Direct LLC has no affiliation or relationship with the individual Jesse Clark. Thus, for purposes of this Response, the “Respondent” is Homestyle Direct LLC.
Homestyle Direct, LLC states that it wishes to add procedural background to the record. It states that a dispute arose between PurFoods and Homestyle Direct concerning the registration of the Disputed Domain Names by Jesse Clark, and that following the registration of the domain names, Homestyle Direct underwent a change in ownership. Homestyle Direct states that there is no conclusive evidence to determine whether the individual registered the domain names under the direction of that company or acted independently. As a result, Homestyle Direct cannot confirm the exact circumstances surrounding the registration of the domain names, however it asserts it did not retain access to and control over the GoDaddy account housing the domain names, which is why it has assented to the transfer them to Complainant and is filing this Response at Complainant’s request.
Homestyle Direct, LLC admits no liability or bad faith and requests the Arbitrator to order the Registrant to transfer the disputed domain names to Complainant in a timely fashion.
While Homestyle Direct has assented to the request to transfer the domain names to Complainant, it does not appear to this Panel from the record that Homestyle Direct is the alter ego of, representative of, or otherwise has demonstrated its legal capacity to speak for the actual registrant of the domain names, Jesse Clark. Accordingly, Homestyle Direct’s consent to the transfer does not suffice to order a transfer (even assuming that such consent, if made by the actual registrant, would suffice without further analysis of the factors under the Policy – an issue as to which no opinion is or need be expressed to resolve this case).
Accordingly, the Panel will address the merits of the dispute under the Policy. In so doing, the Panel concludes that Complainant has met the three-factor test set forth in the Policy to warrant a transfer of the domain names, and accordingly its request for such transfer shall be granted.
PRELIMINARY ISSUE – The Purported Consent to Transfer
Homestyle Direct (“HD”) states that it consents to the transfer of the three disputed domain names to Complainant. HD, however, is not the registrant. As both the record and HD’s own statement in footnote 1 of its response (quoted above) make clear, the registrant is an individual, Jesse Clark, who was formerly employed by HD. Indeed, HD denies having any knowledge of, or responsibility for, Clark’s actions when he registered the disputed domain names in 2016 and 2017.
Absent evidence that HD is the alter ego of, represents, or otherwise has legal standing to speak for Jesse Clark – and indeed given what amounts to HD’s express denial of all such facts – HD’s purported consent to the transfer of the domain names is irrelevant.
The Panel is aware of no evidence indicating that the actual registrant, Jesse Clark, has consented to the transfer. Accordingly, the Panel cannot find that the registrant has so consented. Moreover, even in the event of registrant consent, views differ among panelists as to whether panels can forthwith order a transfer or should still assess the factors set forth in the Policy. That difference of views is moot here, in any case, as there is no evidence of consent by the actual registrant. Accordingly, the Panel turns to the three Policy factors.
Although notice of this proceeding was provided directly to the actual registrant, Jesse Clark, via the above-noted email addresses, Clark has not filed any response. Accordingly, the panel may draw such reasonable inferences from the Complaint as may be warranted in the absence of any response from the registrant.
As Complainant correctly states, each of the three disputed domain names is identical to a trademark registered by Complainant. The only difference is the addition the top-level domain names (TLDs) <.org> or <.co>; but it is well established that TLDs are required for technical reasons and can be ignored for purposes of comparison of the disputed domain names to Complainants’ registered trademarks.
The Panel finds that Complainant has satisfied paragraph 4(a)(i) of the Policy.
Complainant has not assented to the registration of any of the disputed domain names by the registrant, nor does it appear that the registrant is commonly known as, or has engaged in any bona-fide offering of goods or services under, the names in question, each of which as noted above is a registered trademark of Complainant’s. The registrant therefore does not have any rights or legitimate interests in the disputed domain names.
Accordingly, the Panel finds that Complainant has satisfied paragraph 4(a)(ii) of the Policy.
Given that Complainants’ marks are federally registered in the United States, and that the disputed domain names are identical to those marks, it is inconceivable that the registrant was not aware of Complainant and its marks when it registered the disputed domain names. The registration of multiple domain names each targeting a distinct trademark belonging to the same complainant cannot plausibly be coincidental.
Complainant has also provided screenshot evidence that the disputed domain names are being used to divert consumers and create a likelihood of confusion as to source or affiliation. Such conduct is evidence of bad faith under Policy ¶ 4(b)(iii) and (iv). See Nestlé Waters North America, Inc. v. Domain Administrator / Fundacion Privacy Services LTD, FA 1792308 (Forum July 22, 2018) (“[T]he Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to its website by creating likelihood of confusion with the Complainant's trademarks as to the source, sponsorship, affiliation or endorsement of the web site likely to disrupt the business of the Complainant.”).
The Panel accordingly finds that Complainant has satisfied paragraph 4(a)(iii) of the Policy.
Nothing herein shall be deemed to constitute a finding of bad faith by Homestyle Direct LLC, which is not the registrant of the disputed domain names. Indeed, that entity (by assenting to the requested transfer) appears to have at all relevant times acted in good faith. The finding of bad faith made herein relates to the individual who registered the disputed domain names and is no longer employed by Homestyle Direct.
Complainant having established each of the three factors required under the Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <purfoods.org>, <momsmeals.org>, and <momsmeals.co> domain names be TRANSFERRED to Complainant.
Michael A. Albert, Panelist
Dated: May 17, 2023
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