DECISION

 

Krasdale Foods, Inc. v. Flight 750 / Third

Claim Number: FA2501002138190

 

PARTIES

Complainant is Krasdale Foods, Inc. ("Complainant"), represented by Jess M. Collen of Rothwell, Figg, Ernst & Manbeck, P.C., New York, USA. Respondent is Flight 750 / Third ("Respondent"), United Kingdom.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <krasdalesfoods.com>, registered with NameCheap, Inc.

 

PANEL

The undersigned certifies that they have acted independently and impartially and to the best of their knowledge have no known conflict in serving as Panelist in this proceeding.

 

Sandra J. Franklin as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on January 31, 2025; Forum received payment on January 31, 2025.

 

On February 3, 2025, NameCheap, Inc. confirmed by e-mail to Forum that the <krasdalesfoods.com> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. 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 February 4, 2025, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 24, 2025 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@krasdalesfoods.com. Also on February 4, 2025, 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, Forum transmitted to the parties a Notification of Respondent Default.

 

On February 25, 2025, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Sandra J. Franklin 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. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, 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 <krasdalesfoods.com> domain name is confusingly similar to Complainant's KRASDALE mark.

 

2.       Respondent does not have any rights or legitimate interests in the <krasdalesfoods.com> domain name.

 

3.       Respondent registered and uses the <krasdalesfoods.com> domain name in bad faith.

 

B. Respondent did not file a Response.

 

FINDINGS

Complainant, Krasdale Foods, Inc., holds a registration for the KRASDALE mark with the United States Patent and Trademark Office ("USPTO") (Reg. No. 230,899, registered August 9, 1927).

 

Respondent registered the <krasdalesfoods.com> domain name on January 28, 2025, and fails to make an active use of the domain name.

 

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted and 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").

 

Identical and/or Confusingly Similar

The Panel finds that Complainant has rights in the KRASDALE mark based on the registration of the mark with the USPTO. See Brooks Sports, Inc. v. Joyce Cheadle, FA 1819065 (Forum Dec. 28, 2018) (finding that Complainant's registration of the BROOKS mark with the USPTO sufficiently conferred its rights in the mark under Policy ¶ 4(a)(i)").

 

Respondent's <krasdalesfoods.com> domain name uses Complainant's KRASDALE mark and simply adds an "s" and a gTLD. These changes do not distinguish a disputed domain name from a mark under Policy ¶ 4(a)(i). See Bittrex, Inc. v. Sergey Valerievich Kireev / Kireev, FA 1784651 (Forum June 5, 2018) (holding that the domain name consists of the BITTREX mark and adds "the letters 'btc' and the gTLD .com which do not distinguish the Domain Name from Complainant's mark.").  Therefore, the Panel finds that Respondent's <krasdalesfoods.com> domain name is confusingly similar to Complainant's KRASDALE mark.

 

The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) ("Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests.").

 

Complainant contends that Respondent has no rights or legitimate interests in the <krasdalesfoods.com> domain name, as Respondent is not commonly known by the domain name. Complainant has not given Respondent permission to use its KRASDALE mark. The WHOIS identifies "Flight 750 / Third" as the registrant.  Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name and thus has no rights under Policy ¶ 4(c)(ii). See Navistar International Corporation v. N Rahmany, FA 1620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration). 

 

Complainant demonstrates that Respondent does not make an active use of the <krasdalesfoods.com> domain name and thus cannot establish a bona fide offering of goods or services or a legitimate noncommercial or fair use. The Panel therefore finds that Respondent has no rights under Policy ¶¶ 4(c)(i) or (iii). See Activision Blizzard, Inc. / Activision Publishing, Inc. / Blizzard Entertainment, Inc. v. Cimpress Schweiz GmbH, FA 1737429 (Forum Aug. 3, 2017) ("Complainant insists that Respondent has made no demonstrable preparations to use the disputed domain name. When Respondent is not using the disputed domain name in connection with an active website, the Panel may find that Respondent is not using the disputed domain name for a bona fide offering of goods or services… As Respondent has not provided a response to this action, Respondent has failed to meet its burden regarding proof of any rights or legitimate interest in the disputed domain."). 

 

The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).

 

Registration and Use in Bad Faith

Complainant alleges that Respondent registered and uses the <krasdalesfoods.com> domain name in bad faith as Respondent fails to make an active use of the domain name. The Panel agrees and finds bad faith under Policy ¶ 4(a)(iii). See Regions Bank v. Darla atkins, FA 1786409 (Forum June 20, 2018) ("Respondent registered and is using the domain name in bad faith under Policy ¶ 4(a)(iii) because Respondent uses the domain name to host an inactive website."). 

 

Complainant contends that Respondent's typosquatting also demonstrates bad faith. Registering a disputed domain name that intentionally introduces a typographical error, such as adding an "s", to a mark evinces bad faith registration and use under Policy ¶ 4(a)(iii). See Webster Financial Corporation and Webster Bank, National Association v. IS / ICS INC, FA 1683305 (Forum Aug. 11, 2016) ("Typosquatting is a practice whereby a domain name registrant, such as Respondent, deliberately introduces typographical errors or misspellings into a trademark and then uses the string in a domain name. The conniving registrant wishes and hopes that Internet users will inadvertently type the malformed trademark or read the domain name and believe it is legitimately associated with the target trademark. In doing so, wayward Internet users are fraudulently directed to a web presence controlled by the confusingly similar domain name's registrant.").  Accordingly, the Panel finds bad faith typosquatting under Policy ¶ 4(a)(iii).

 

The Panel also finds that Respondent registered the <krasdalesfoods.com> domain name with actual knowledge of Complainant's rights in the KRASDALE mark, noting Complainant's use of the mark since at least 1927, and finds further bad faith under Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had "actual knowledge of Complainant's mark when registering the disputed domain name").

 

The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <krasdalesfoods.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Sandra J. Franklin, Panelist

Dated: February 26, 2025