ADAM KAY / YOU LOVE FRUIT INC v. HANNAH KRAUSZ / PURE BITES
Claim Number: FA2008001910498
Complainant is ADAM KAY / YOU LOVE FRUIT INC (“Complainant”), New York, USA. Respondent is HANNAH KRAUSZ / PURE BITES (“Respondent”), New York, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <youlovefruit.com> (“Domain Name”), 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.
Nicholas J.T. Smith as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 28, 2020; the Forum received payment on August 28, 2020.
On August 31, 2020, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <youlovefruit.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 September 4, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 24, 2020 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. Also on September 4, 2020, 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 September 29, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Nicholas J.T. Smith 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 has rights in the YOU LOVE FRUIT mark through its registration with the United States Patent and Trademark Office (“USPTO”). (Reg. 4,786,666, registered Aug. 4, 2015). Respondent’s <youlovefruit.com> domain name is identical to Complainant’s mark as it incorporates the mark in its entirety and adds the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights and legitimate interests in the <youlovefruit.com> domain name. Respondent does not use the Domain Name for any bona fide offering of goods or services, nor any legitimate noncommercial or fair use. Instead, Respondent inactively holds the Domain Name.
Respondent registered and uses the <youlovefruit.com> domain name in bad faith. Respondent offers the Domain Name for sale, while inactively holding the Domain Name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant having failed to establish bad faith registration and use of the domain name <youlovefruit.com> has not established all required elements of its claim, and thus its complaint must be denied.
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 rights in the YOU LOVE FRUIT mark based upon registration of the mark with the USPTO (e.g. 4,786,666, registered Aug. 4, 2015). Registration of a mark with the USPTO is sufficient to establish rights in that mark. See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) (stating, “Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.”).
The Panel finds that the <youlovefruit.com> Domain Name is identical to the YOU LOVE FRUIT mark as it wholly incorporates the YOU LOVE FRUIT mark (absent the spaces which are not reproducible in a domain name and adds the “.com” gTLD. Adding the “.com” gTLD is generally insufficient in differentiating a mark from the mark it incorporates under Policy ¶ 4(a)(i). See Marquette Golf Club v. Al Perkins, FA 1738263 (Forum July 27, 2017) (“When a respondent’s domain name incorporates a mark in its entirety and merely adds a generic top-level domain (gTLD), “.com”, then the Panel may find that the disputed domain name is identical to Complainant’s mark.”).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
In light of the Panel’s dispositive finding on the issue of registration and use in bad faith, the Panel declines to address the question of rights or legitimate interests.
The Panel finds that Complainant failed to meet its burden of proof of bad faith registration and use under Policy ¶ 4(a)(iii). See Tristar Products, Inc. v. Domain Administrator / Telebrands, Corp., FA 1597388 (Forum Feb. 16, 2015) (“Complainant makes conclusory allegations of bad faith but has adduced no specific evidence that warrants a holding that Respondent proceeded in bad faith at the time it registered the disputed domain name. Mere assertions of bad faith, even when made on multiple grounds, do not prove bad faith.”); see also Chris Pearson v. Domain Admin / Automattic, Inc., FA 1613723 (Forum Jul. 3, 2015) (finding that the complainant could not establish the respondent registered and used the disputed domain name in bad faith because it failed to present evidence that would support such a holding).
The Domain Name consists of three generic words being “you”, “love” and “fruit” with an entirely descriptive meaning (that the reader of the phase loves fruit). While Complainant holds a registered trade mark for the YOU LOVE FRUIT mark it is limited to fruit leathers. Complainant provides no evidence of the extent of its business and in particular does not establish that its YOU LOVE FRUIT mark is so well-known and ubiquitous that the Panel can conclude, for that reason alone, that Respondent’s registration of the Domain Name containing the words “you”, “love” and “fruit” was motivated by awareness of Complainant (which would generally amount to bad faith registration), as opposed to registration of the Domain Name for its inherent meaning. Nor does Complainant provide any 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 Respondent was aware of Complainant at the time of registration.
Therefore, in order to determine if Respondent’s registration of the Domain Name was motivated by awareness of Complainant or the inherent qualities of the words comprising the Domain Name, it is necessary to consider evidence of Respondent’s use of the Domain Name. The Domain Name is currently parked on a page operated by the Registrar. Complainant submits that “the respondent registered the domain youlovefruit.com in order to control the domain and improperly profit from selling it to the trademark holder. It is evidence by the fact that the domain is parked, inactive and being offered for sale on Godaddy”.
The Panel notes that there is no evidence that Respondent is aware of or has targeted the Complainant in any way, either by a direct offer for sale, or in the manner it has used the Domain Name. Furthermore the evidence does not support the contention that the Domain Name is being offered for sale. The parking page is maintained by the Registrar and offers a service called “Get this Domain” by which the Registrar will, for a fee, contact the owner of a particular domain name to see if they are willing to sell that domain name. The Panel is unprepared to infer, based on the Registrar offering a generic service that will assist domain name purchasers, that Respondent has offered or intends to offer the Domain Name for sale.
Finally, there is no other evidence that Respondent has violated any of the factors listed in Policy ¶ 4(b) or engaged in any other conduct that would constitute bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See Haru Holding Corporation v. Michael Gleissner / NextEngine Ventures LLC, FA 1685263 (Forum Aug. 30, 2016) (finding that where a respondent has not violated any of the factors listed in Policy ¶ 4(b) or engaged in any other conduct that would constitute bad faith, lack of rights or legitimate interests on its own is insufficient to establish bad faith). Respondent has not, on the basis of the evidence before the Panel, engaged in a pattern of conduct of registering domain names to prevent the owner of a mark for reflecting such a mark in a corresponding domain name. Respondent is not a competitor of Complainant. As discussed above, the Panel is not persuaded, on the balance of probabilities, that Respondent is using the Domain Name to take advantage of any confusion with Complaint’s YOU LOVE FRUIT mark, as opposed to the descriptive meaning of the words comprising a Domain Name.
The Uniform Domain Name Dispute Resolution Policy, is designed to deal with clear cases of cybersquatting, see IAFT International LLC v. MANAGING DIRECTOR / EUTOPIAN HOLDINGS, FA 1577032 (Forum Oct. 9, 2014) (“The objectives of the Policy are limited -- designed to obviate the need for time-consuming and costly litigation in relatively clear cases of cyber-squatting -- and not intended to thwart every sort of questionable business practice imaginable. ”). In the present case Respondent has registered a domain name consisting of 3 descriptive words that happens to correspond with YOU LOVE FRUIT mark and redirected the domain name to a parking page operated by the Registrar. Absent any evidence of fame of the YOU LOVE FRUIT mark or any other evidence that Respondent has engaged in bad faith conduct, those facts are not sufficient to establish bad faith under the Policy.
The Panel notes 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.
As reasoned above, the Panel finds that Complainant has failed to prove that the Domain Name was registered and used in bad faith.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.
Accordingly, it is Ordered that the <youlovefruit.com> domain name REMAIN WITH Respondent.
Nicholas J.T. Smith, Panelist
Dated: September 30, 2020
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