Kellogg North America Company v. Domain Privacy / Above.com Domain Privacy
Claim Number: FA2007001906152
Complainant is Kellogg North America Company ("Complainant"), represented by James K. Lewis of One Kellogg Sq., Michigan, USA. Respondent is Domain Privacy / Above.com Domain Privacy ("Respondent"), Australia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <kelloggsmyhr.com>, 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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 27, 2020; the Forum received payment on July 27, 2020.
On July 29, 2020, GoDaddy.com, LLC confirmed by email to the Forum that the <kelloggsmyhr.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. 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 August 4, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 24, 2020 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@kelloggsmyhr.com. Also on August 4, 2020, the Written Notice of the Complaint, notifying Respondent of the email 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 August 26, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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 is a multinational food manufacturing company that sells products in more than 180 countries, and has annual sales of more than $13 billion. Complainant has used the KELLOGG'S mark in connection with its goods and services since 1907. Complainant owns registrations for the mark in the United States, Australia, and other jurisdictions and also claims common-law rights in the mark. Complainant also owns many world-famous brands associated with various products, some of which also incorporate the KELLOGG'S mark.
Respondent registered the disputed domain name <kelloggsmyhr.com> in May 2020. The domain name is being used for a website composed of what Complainant alleges are pay-per-click links to third-party websites, some of which compete with Complainant. The website also includes a "Buy this domain" link to a marketplace site at which users are prompted to make offers to purchase the disputed domain name. Complainant states that Respondent is not sponsored by or affiliated with Complainant; that Complainant has not given Respondent permission to use its marks; and that Respondent is not commonly known by the disputed domain name.
Complainant contends on the above grounds that the disputed domain name <kelloggsmyhr.com> is confusingly similar to its KELLOGG'S mark; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
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 Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
The disputed domain name <kelloggsmyhr.com> incorporates Complainant's registered KELLOGG'S trademark, omitting the apostrophe and adding the generic terms "my" and "hr" and the ".com" top-level domain. These alterations do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., CVS Pharmacy, Inc. v. Domain Admin / Privacy Protect, LLC (PrivacyProtect.org)/ Domain Privacy Guard Sociedad Anónima Ltd, Case No. D2020-1300 (WIPO July 23, 2020) (finding <cvsmyhr.com> confusingly similar to CVS); Kellogg North America Co. v. Richard Harvey / Kellogg Co., FA 1752030 (Forum Nov. 16, 2017) (finding <kelloggscompany.org> confusingly similar to KELLOGG'S). The Panel considers the disputed domain name to be confusingly similar to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's registered mark without authorization. Its sole apparent use has been for a website composed of pay-per-click links, including links to competitors of Complainant, and a link to a site that solicits offers to purchase the domain name. Such use is unlikely to give rise to rights or legitimate interests under the Policy. See, e.g., Securian Financial Group, Inc. v. Johnny Leed / Johnnyleed, FA 1889588 (Forum Apr. 17, 2020) (finding lack of rights or interests where sole apparent use of domain name was to display pay-per-click advertisements to competitors of complainant); HDR Global Trading Ltd. v. Super Privacy Service LTD c/o Dynadot, FA 1855593 (Forum Aug. 30, 2019) (finding lack of rights or interests where sole apparent use was to advertise the domain name itself for sale); State Farm Mutual Automobile Insurance Co. v. Moser, Troy, FA 1829743 (Forum Mar. 14, 2019) (finding lack of rights or interests where sole apparent use was to display advertising links, likely generated automatically by registrar).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [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 [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent registered a domain name incorporating Complainant's well-known mark, and is using it for the sole purposes of profiting from what are presumed to be pay-per-click links, including links to competitors of Complainant, and advertising the domain name for sale. Such conduct is indicative of bad faith registration and use under the Policy. See, e.g., Securian Financial Group, Inc., supra (pay-per-click links); HDR Global Trading Ltd., supra (advertising domain name for sale). The Panel so finds.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <kelloggsmyhr.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: September 7, 2020
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