DECISION

 

Intercontinental Great Brands LLC v. Lin Hai Hong

Claim Number: FA2509002178228

 

PARTIES

Complainant is Intercontinental Great Brands LLC ("Complainant"), represented by Gina Carrillo of Corsearch, Inc., New York, USA. Respondent is Lin Hai Hong ("Respondent"), China.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <thenutterbutter.com>, registered with DNSPod, 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.

 

Charles A. Kuechenmeister, Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on September 22, 2025; Forum received payment on September 22, 2025.

 

On September 23, 2025, DNSPod, Inc. confirmed by e-mail to Forum that the <thenutterbutter.com> domain name is registered with DNSPod, Inc. and that Respondent is the current registrant of the name. DNSPod, Inc. has verified that Respondent is bound by the DNSPod, 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 September 29, 2025, Forum served the Complaint and all Annexes, including a Chinese and English Written Notice of the Complaint setting a deadline of October 20, 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@thenutterbutter.com. Also on September 29, 2025, the Chinese and English 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 in Chinese and English.

 

On October 21, 2025, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Charles A. Kuechenmeister 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 a Response or any other submittal from Respondent.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PRELIMINARY ISSUE:  Language of The Proceeding

According to the registrar, the registration agreement is written in Chinese. Rule 11(a) provides that the language of the proceedings is the language of the registration agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the case.  Complainant filed its Amended Complaint in English and requests that these proceedings be conducted in English. Factors which previous panels have seen as important include potential unfairness or unwarranted delay in ordering translation of the pleadings and the Decision, and evidence showing that the respondent can understand the language of the complaint, the language of the domain name, the content on any web pages resolving from the domain name, and prior correspondence between the parties. The WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (WIPO Overview 3.0), at ¶ 4.5.1.  The WIPO Overview is not a definitive statement of applicable law which governs any particular issue, but it does express a consensus among a significant number of UDRP panelists as to how particular issues typically are and should be resolved.  The Panel accepts that consensus on this and other issues addressed later in this Decision.  See also, The Argento Wine Company Limited v. Argento Beijing Trading Company, D2009-0610 (WIPO July 1, 2009) (panel exercising discretion in deciding that the language of the proceedings advance in English, contrary to the Registration Agreement, based on evidence that respondent has command of the language), Finter Bank Zurich v. Shumin Peng, D2006-0432 (WIPO June 12, 2006) (deciding that the proceeding should be in English, stating, "It is important that the language finally decided by the Panel for the proceeding is not prejudicial to either one of the parties in his or her ability to articulate the arguments for the case.").

 

In this case, the domain name is written in English and targets a U.S.-based firm. The website to which it resolves is written exclusively in English (screenshots submitted as Complaint Exhibit H).  This demonstrates that Respondent is proficient in English.  Neither the Panel nor the Complainant is proficient in Chinese. Further, the Written Notice of the Complaint, written in both Chinese and English, was served upon Respondent in accordance with Rules 1 and 2.  Respondent has not submitted a Response or any indication that it desires to participate in this proceeding, in Chinese or otherwise.  Under these circumstances the Panel finds that the additional time and expense of proceeding in Chinese would be unwarranted inasmuch as the only party who might benefit from that has declined to participate.  Adidas AG v. Daehyeon Kim, WIPO Case No. 2013-1904 ("In the present case, the Respondent waived any objection to proceeding in English by failing to respond to the Center's notice sent in both English and Korean."). For the reasons above set forth, this proceeding will be conducted in English.

 

PARTIES' CONTENTIONS

A. Complainant

Complainant distributes snack foods including the Nutter Butter cookie. It has rights in the NUTTER-BUTTER mark based upon its registration of that mark with the United States Patent and Trademark Office (USPTO). The domain name is identical or confusingly similar to Complainant's mark as it fully incorporates the mark, merely omitting the hyphen and adding the word "the" and a generic top level domain (gTLD).

 

Respondent has no rights or legitimate interests in the domain name.  It has not been commonly known by the domain name, it is not affiliated with Complainant and Complainant has not authorized or licensed it to use its mark, and it is not using the domain name in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use but instead is using it to attract internet traffic to its website, which misleads consumers to think it is affiliated with Complainant and generates click-through revenues for Respondent.

 

Respondent registered and uses the domain name in bad faith.  It is using it to attract for commercial gain internet users to its website by creating confusion with Complainant's mark as to the source, sponsorship, affiliation or endorsement of his website, it disrupts Complainant's business, and it registered the domain name with actual knowledge of Complainant and its mark.

 

B. Respondent

Respondent did not submit a Response in this proceeding.

 

FINDINGS

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 a complainant to prove each of the following three elements to obtain an order cancelling or transferring a domain name:

 

(1)  the domain name registered by the respondent is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and

(2)  the 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, pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules the Panel will decide this administrative proceeding on the basis of Complainant's undisputed representations 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 as true unless the evidence is clearly contradictory. Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (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).  Nevertheless, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. 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"), WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (WIPO Overview 3.0), at ¶ 4.3 ("In cases involving wholly unsupported and conclusory allegations advanced by the complainant, . . . panels may find that—despite a respondent's default—a complainant has failed to prove its case.").

 

The Panel finds as follows with respect to the matters at issue in this proceeding:

 

Identical and/or Confusingly Similar

The NUTTER-BUTTER mark was registered to Complainant with the USPTO (Reg. No. 916,411) on July 13, 1971 (TSDR printout included in Complaint Exhibit E).   Complainant's registration of its mark with the USPTO establishes its rights in that mark for the purposes of Policy ¶ 4(a)(i).  DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) ("Complainant's ownership of a USPTO registration for DIRECTV demonstrates its rights in such mark for the purposes of Policy ¶ 4(a)(i).").   

 

Respondent's <thenutterbutter.com> domain name is identical or confusingly similar to Complainant's NUTTER-BUTTER mark.  It fully incorporates the mark, merely omitting the hyphen and adding the word "the" and a gTLD.  These changes do not distinguish the domain name from Complainant's mark for the purposes of Policy ¶ 4(a)(i).  CHC Helicopters (Barbados) Limited v. Viktor Mitrofanov, FA 1924779 (Forum Jan. 11, 2021) ("Per Policy ¶ 4(a)(i), removal of a hyphen and addition of the ".org" gTLD are insufficient to differentiate a disputed domain name from the mark it incorporates under Policy ¶ 4(a)(i)."), MTD Products Inc v J Randall Shank, FA 1783050 (Forum June 27, 2018) ("The disputed domain name is confusingly similar to Complainant's mark as it wholly incorporates the CUB CADET mark before appending the generic terms 'genuine' and 'parts' as well as the '.com' gTLD."). The WIPO Overview 3.0, at ¶ 1.7, states that the test for confusing similarity "typically involves a side-by-side comparison of the domain name and the textual components of the relevant trademark to assess whether the mark is recognizable within the domain name."  Notwithstanding the changes described above, Complainant's mark is clearly recognizable within the domain name.

 

For the reasons set forth above, the Panel finds that the domain name is identical or confusingly similar to the NUTTER-BUTTER mark, in which Complainant has substantial and demonstrated rights. 

 

Rights or Legitimate Interests

If a complainant makes a prima facie case that the respondent lacks rights or legitimate interests in the domain name under Policy ¶ 4(a)(ii), the burden of production shifts to respondent to come forward with evidence that it has rights or legitimate interests in it. 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"). If a respondent fails to come forward with such evidence, the complainant's prima facie evidence will be sufficient to establish that respondent lacks such rights or legitimate interests. If the respondent does come forward with such evidence, the Panel must assess the evidence in its entirety. At all times, the burden of proof remains on the complainant. WIPO Overview 3.0, at ¶ 2.1.

 

Policy ¶ 4(c) lists the following three nonexclusive circumstances, any one of which if proven can demonstrate a respondent's rights or legitimate interests in a domain name for the purposes of Policy ¶ 4(a)(ii):

 

(i)  Before any notice to the respondent of the dispute, the respondent's use 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;

(ii)  The respondent (as an individual, business or other organization) has been commonly known by the domain name, even if the respondent has acquired no trademark or service mark rights; or

(iii)  The respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.

 

Complainant asserts that Respondent has no rights or legitimate interests in the domain name because (i) it has not been commonly known by the domain name, (ii) it is not affiliated with Complainant and Complainant has not authorized or licensed it to use its mark, and (iii) it is not using the domain name in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use but instead is using it to attract internet traffic to its website, which misleads consumers to think it is affiliated with Complainant and generates click-through revenues for Respondent.  These allegations are addressed as follows:

 

The information furnished to Forum by the registrar lists the named Respondent as the registrant of the domain name. This name bears no resemblance to the domain name. Evidence could, of course, in a given case demonstrate that the respondent is commonly known by a name other than the name in which it registered the domain name, e.g., the case of a domain name incorporating the brand name of a specific product offered by and associated with the respondent. In the absence of any such evidence, however, and in cases where no response has been filed, UDRP panels have consistently held that WHOIS evidence of a registrant name which does not correspond with the domain name is sufficient to prove that the respondent is not commonly known by the domain name. Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent's use of the same), Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark). The Panel is satisfied that the Respondent has not been commonly known by the domain name.

 

Complainant states that Respondent is not affiliated with it and that it has not authorized or licensed Respondent to use its NUTTER-BUTTER mark. Complainant has specific competence to make this statement, it is unchallenged by any evidence before the Panel and is taken as true.  In the absence of evidence that a respondent is authorized to use a complainant's mark in a domain name or that a respondent is commonly known by the disputed domain name, the respondent may be presumed to lack rights or legitimate interests in the domain name. IndyMac Bank F.S.B. v. Eshback, FA 830934 (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 that it is commonly known by the domain name), Indeed, Inc. v. Ankit Bhardwaj / Recruiter, FA 1739470 (Forum Aug. 3, 2017) ("Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant's trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at-issue domain name.").

 

Complaint Exhibit H contains screenshots of the website resolving from the domain name.  Many of these pages advertise and promote Complainant's Nutter Butter cookies, using Complainant's registered stylized mark (TSDR printout included in Complaint Exhibit E) and images of that product duplicate images of it on Complainant's website (screenshot submitted as Complaint Exhibit K). The site does not, however, identify a site sponsor or offer any opportunity to purchase these products, and numerous other pages on Respondent's site promote and provide links to a platform that allegedly simplifies domain management, including the purchase of domain names. Even many of the pages that advertise Complainant's Nutter Butter cookies contain links to the domain management business. Respondent is using the confusingly similar domain name to attract Internet traffic to its commercial pay-per-click site.  This is neither a bona fide offering of goods or services within the meaning of Policy ¶ 4(c)(ii) nor a legitimate noncommercial or fair use within the meaning of Policy ¶ 4(c)(iv). Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Forum Sept. 30, 2003) ("Respondent's demonstrated intent to divert Internet users seeking complainant's website to a website of Respondent and for Respondent's benefit is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)"), Vance Int'l, Inc. v. Abend, FA 970871 (Forum June 8, 2007) (concluding that the operation of a pay-per-click website at a confusingly similar domain name does not represent a bona fide offering of goods or services or a legitimate noncommercial or fair use, regardless of whether or not the links resolve to competing or unrelated websites or if the respondent is itself commercially profiting from the click-through fees).

 

The evidence furnished by Complainant establishes the required prima facie case. On that evidence, and in the absence of any evidence from Respondent, the Panel finds that Respondent has no rights or legitimate interests in the domain name.

 

Registration or Use in Bad Faith

Policy ¶ 4(a)(iii) requires Complainant to prove that the domain name has been registered and is being used in bad faith. Policy ¶ 4(b) sets forth a nonexclusive list of four circumstances, any one of which if proven would be evidence of bad faith use and registration of a domain name. They are as follows:

 

(i)                       circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant which is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the respondent's documented out-of-pocket costs directly related to the domain name; or

(ii)                      the respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the respondent has engaged in a pattern of such conduct; or

(iii)                      the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or

(iv)                      by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to the respondent's web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation or endorsement of the respondent's web site or location or of a product of service on the respondent 's web site or location.

 

The concept of bad faith as illustrated in the above four subparagraphs necessarily involves a subjective intent on the part of a respondent knowingly to trade upon the goodwill of the complainant. The respondent must intentionally have targeted the complainant's mark. Such subjective intent would in turn require that the respondent actually knew of the complainant and its rights in the relevant mark when it registered the domain name. Renu Medispa, LLC v Angela Sattler/Aesthetics, FA2503002143814 (Forum April 28, 2025) ("A foundational question under ¶ 4(a)(iii) is whether or not Respondent had knowledge of Complainant or its claimed trademark at the time it registered the disputed domain name.").

 

In attempting to discern actual knowledge and a subjective bad faith intent, panels have looked at many different types of evidence, including but not limited to use of a domain name in direct competition with a trademark owner, impersonation, the parties operating in the same market segment, the parties being physically located in the same general geographic area, a pattern of bad faith conduct, actual prior association between or among the parties, the distinctive or famous nature of the trademark, suggesting that any similarity is not happenstance. Importantly, allegations about a respondent's subjective intention are not evidence in this regard.

 

In this case, it is clear that Respondent had actual knowledge of Complainant when it registered the domain name in September 2024 (WHOIS printout submitted as Complaint Annex I shows registration date).  Complainant had by then been using its NUTTER-BUTTER mark at least since the January 1970 application date shown on the TSDR printout for the mark. The NUTTER-BUTTER mark is unique, a coined term that has no meaning apart from serving as a brand for Complainant's cookies. More tellingly, Respondent had to have had actual knowledge of complainant and its mark in order to include images of Complainant's Nutter Butter cookies on its website. Respondent had actual knowledge of Complainant when it registered the domain name, and intentionally targeted Complainant when it did so.

 

As discussed in the rights and legitimate interests analysis, Respondent's website hosts pay-per-click links to another commercial entity. Respondent is using the confusingly similar domain name to attract, for commercial gain, Internet users to its web site by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation or endorsement of its website, as described in Policy ¶ 4(b)(iv).  Pay-per-click sites are common on the Internet. Under the most common forms of business arrangements relating to these sites, when a visitor to the site clicks on one of the links which appear there, the site sponsor receives compensation from the various web site owners who are forwarded from the site. In most cases, the site sponsor receives compensation based upon the number of hits the downstream web site owners get from being linked to Respondent's web site. AllianceBernstein LP v. Texas International Property Associates, Case No. D2008-1230 (WIPO, 2008) (the domain name resolved to a search directory site with links to third-party vendors and the panel inferred that the respondent received click-through-fees when site visitors clicked on those links), Brownells, Inc. v. Texas International Property Associates, Case No. D2007-1211 (WIPO, 2007), (finding in similar cases that a respondent intentionally attempted to attract internet searchers for commercial gain). Respondent's use of the domain name is commercial also because the sponsor of the website forwarded from Respondent's website benefits from the subsequent interest and purchases of those who visit the site. UDRP panels have held that there only needs to be commercial gain sought by some party for the use to be commercial. Focus Do It All Group v. Athanasios Sermbizis, Case No. D2000-0923 (WIPO,2000) (finding that "[I]t is enough that commercial gain is being sought for someone" for a use to be commercial).

 

Complainant alleges further that Respondent's website disrupts its business.  Complainant does not allege that this conduct fits within the circumstances described in Policy ¶ 4(b)(iii), and it does not because there is no evidence that disrupting Complainant's business was Respondent's primary intent. Respondent does, however, disrupt Complainant's business by falsely causing consumers to believe that its website is associated with Complainant. Its conduct creates reputational risks, a likelihood of Complainant having to deal with complaints from customers who were deceived by Respondent's site, and the potential loss of customers. The disruptive impact Respondent's conduct would have upon Complainant's business is obvious, and Respondent intentionally went forward with its plans in spite of that. As discussed above, the non-exclusive nature of Policy ¶ 4(b) allows for consideration of additional factors in an analysis for bad faith, and using a confusingly similar domain name in a manner which disrupts the business of a complainant by falsely suggesting an affiliation with that complainant is sufficient evidence of bad faith to meet the requirements of Policy ¶ 4(a)(iii).  It demonstrates bad faith independently of Policy ¶ 4(b)(iii). Red Wing Shoe Company, Inc. v. wei zhang / Magdalena Jennifer / Mu Yan / Carolina Rodrigues / Fundacion Comercio Electronico, FA 1873163 (Forum Jan. 3, 2020). 

 

For the reasons above set forth above, the Panel finds that Respondent registered and is using the domain name in bad faith within the meaning of Policy ¶ 4(a)(iii).

 

DECISION

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

 

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

 

 

Charles A. Kuechenmeister, Panelist

October 22, 2025