Church & Dwight Co., Inc. v. Domain Privacy / Above.com Domain Privacy
Claim Number: FA2104001942553
Complainant is Church & Dwight Co., Inc. (“Complainant”), represented by Vanessa A. Ignacio, Esq. of Lowenstein Sandler PC, New Jersey, USA. Respondent is Domain Privacy / Above.com Domain Privacy (“Respondent”), Australia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <armandhammersnaps.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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 22, 2021; the Forum received payment on April 22, 2021.
On April 23, 2021, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <armandhammersnaps.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 April 28, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 18, 2021 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@armandhammersnaps.com. Also on April 28, 2021, 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 May 19, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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, Church & Dwight Co., Inc., is the owner of the ARM & HAMMER mark, which has been used in connection with baking soda and a variety of laundry, home, and personal care products made with baking soda. Complainant maintains registration of its ARM & HAMMER mark with the United States Patent and Trademark Office (USPTO). The disputed domain name, <armandhammersnaps.com>, is confusingly similar to Complainant’s ARM & HAMMER mark because the <armandhammersnaps.com> domain name wholly incorporates Complainant’s ARM & HAMMER mark, replacing the “&” with the word “and”, and adding the descriptive word “snaps” to the “.com” generic top-level domain (“gTLD”) to form a domain name.
Respondent does not have any rights or legitimate interests in the <armandhammersnaps.com> domain name because Respondent is not commonly known by the <armandhammersnaps.com> domain name nor has Respondent been granted authorization to use Complainant’s ARM & HAMMER mark. Respondent is not using the <armandhammersnaps.com> domain name in connection with a bona fide offering of goods and services nor for a legitimate noncommercial or fair use because Respondent is using the <armandhammersnaps.com> domain name to host hyperlinks unrelated to Complainant’s business.
Respondent registered or uses the <armandhammersnaps.com> domain name in bad faith because Respondent intendent to use the <armandhammersnaps.com> as an attraction for commercial gain by misleading users into thinking of some connection between Complainant and the <armandhammersnaps.com> domain name. Respondent used the <armandhammersnaps.com> in opportunistic bad faith because Respondent registered the <armandhammersnaps.com> domain name on the eve of the official launch of Complainant’s ARM & HAMMER SNAPS launch. Further, Respondent acted with actual knowledge in Complainant’s rights in its ARM & HAMMER mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, Church & Dwight Co., Inc., is the owner of the ARM & HAMMER mark, which has been used in connection with baking soda and a variety of laundry, home, and personal care products made with baking soda. Complainant maintains registration of its ARM & HAMMER mark with the United States Patent and Trademark Office (USPTO) (e.g. Reg. No. 930,654. Registered on March 7, 1972). The disputed domain name, <armandhammersnaps.com>, is confusingly similar to Complainant’s ARM & HAMMER mark.
Respondent registered the <armandhammersnaps.com> domain name on February 22, 2021.
Respondent does not have any rights or legitimate interests in the <armandhammersnaps.com> domain name. Respondent is using the <armandhammersnaps.com> domain name to host hyperlinks unrelated to Complainant’s business.
Respondent registered or uses the <armandhammersnaps.com> domain name 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 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 ARM & HAMMER mark through its registration with the USPTO. Registration of a mark with the USPTO is sufficient to show that Complainant has rights in that mark under Policy ¶ 4(a)(i). See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017)
Respondent’s <armandhammersnaps.com> domain name is confusingly similar to Complainant’s ARM & HAMMER mark because the <armandhammersnaps.com> domain name wholly incorporates Complainant’s ARM & HAMMER mark, replacing the “&” with the word “and”, and adding the descriptive word “snaps” to the “.com” generic top-level domain (“gTLD”) to form a domain name.
Respondent does not have any rights or legitimate interests in the <armandhammersnaps.com> domain name because Respondent is not commonly known by the <armandhammersnaps.com> domain name. According to the WHOIS database, the Respondent in this proceeding is “Domain Privacy / Above.com Domain Name Privacy”. Where a response is lacking, WHOIS information can support a finding that a respondent is not commonly known by the disputed domain name, especially where a privacy service has been engaged, under Policy ¶ 4(c)(ii). See 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.); see also Kohler Co. v. Privacy Service, FA1505001621573 (Forum July 2, 2015) (holding that the respondent was not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii) where “Privacy Service” was listed as the registrant of the disputed domain name). Additionally, lack of evidence in the record to indicate that the respondent has been authorized to register a domain name using a complainant’s mark supports a finding that respondent does not have rights or legitimate interests in the disputed domain name. See Navistar International Corporation v. N Rahmany, FA1505001620789 (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). Therefore, Respondent is not commonly known by the <armandhammersnaps.com> domain name under Policy ¶ 4(c)(ii).
Respondent is not using the <armandhammersnaps.com> domain name in connection with a bona fide offering of goods or services nor for a legitimate noncommercial or fair use because Respondent is using the <armandhammersnaps.com> domain name to host links unrelated to Complainant. A domain name may be found to not be used in connection with a bona fide offering of goods or services nor for a legitimate noncommercial or fair use, under Policy ¶¶ 4(c)(i) and (iii), where a respondent uses a confusingly similar domain name that hosts hyperlinks that is unrelated to a complainant. See Materia, Inc. v. Michele Dinoia, FA1507001627209 (Forum Aug. 20, 2015).
Respondent registered or uses the <armandhammersnaps.com> domain name in bad faith because Respondent used the <armandhammersnaps.com> domain name as an attraction for commercial gain. Use of a domain name to host generic third-party hyperlinks may be evidence of bad faith under Policy ¶ 4(b)(iv). See Plain Green, LLC v. wenqiang tang, FA1505001621656 (Forum July 1, 2015) (finding that the respondent’s use of the disputed domain name to feature generic third-party hyperlinks constituted bad faith according to Policy ¶ 4(b)(iv)). The resolving website using the <armandhammersnaps.com> domain name displays links that are not related to Complainant nor its products using the ARM & HAMMER mark. Therefore, Respondent registered or uses the <armandhammersnaps.com> domain name in bad faith under Policy ¶ 4(b)(iv).
Respondent acted in opportunistic bad faith because Respondent registered the <armandhammersnaps.com> domain name just before Complainant launched its ARM & HAMMER SNAPS product. Opportunistic bad faith may be found where a respondent registers a confusingly similar domain name near a major event concerning a complainant. See Amazon Technologies, Inc. v. harshit dhingaun, FA1505001619696 (Forum June 10, 2015) (holding that the respondent had demonstrated opportunistic bad faith according to Policy ¶ 4(a)(iii), when it registered the <amazonfashionindia.com> and <amazonindiafashion.com> domain names within days after the announcement of the complainant’s sponsorship of India Fashion Week). Here, Complainant asserts that the <armandhammersnaps.com> domain name was registered on the eve of when Complainant was supposed to launch a subscription service for cat litter using the same name. Due to the proximity of the launch and the registration of the <armandhammersnaps.com> domain name, the Panel finds that Respondent acted in opportunistic bad faith.
Respondent acted with actual knowledge of Complainant’s rights in the ARM & HAMMER mark. A respondent may be found to have acted with actual knowledge of a complainant’s rights in a mark where such complainant’s mark has a very large prominence among the public. See Exxon Mobil Corp. v. Fisher, D2000-1412 (WIPO Dec. 18, 2000) (finding that the respondent had actual and constructive knowledge of the complainant’s EXXON mark given the worldwide prominence of the mark and thus the respondent registered the domain name in bad faith). Complainant has used the ARM & HAMMER mark for over 100 years especially through its baking soda-based products. Complainant also argues that it holds over 3,000 active registrations worldwide making its mark known across the globe. Therefore, Respondent registered and used the disputed domain name in bad faith under Policy ¶ 4(a)(iii).
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <armandhammersnaps.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: June 2, 2021
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