Kittrich Corporation v. lisa julian
Claim Number: FA1305001501380
Complainant is Kittrich Corporation (“Complainant”), represented by Mark A. Calkins, California, USA. Respondent is lisa julian (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <littletwigs.com>, registered with GoDaddy.com, LLC.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
John J. Upchurch as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on May 23, 2013; the National Arbitration Forum received payment on May 23, 2013.
On May 28, 2013, GoDaddy.com, LLC confirmed by e-mail to the National Arbitration Forum that the <littletwigs.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 May 31, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 20, 2013 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@littletwigs.com. Also on May 31, 2013, 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 National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On June 26, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed John J. Upchurch as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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 National Arbitration 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.
Complainant
1. Complainant contends that it has rights in the LITTLE TWIG mark, used in connection with cosmetics and soaps. Complainant is the owner of a registration for the LITTLE TWIG mark with the United States Patent and Trademark Office (“USPTO”) (see Reg. No. 3,121,155 registered on July 25, 2006). See Complainant’s Exhibit A.
2. The disputed domain name is confusingly similar to Complainant’s mark. Respondent’s <littletwigs.com> domain name incorporates Complainant’s mark in its entirety while adding an “s” at the end as well as the generic top-level domain (“gTLD”) “.com.” These additions do not distinguish the disputed domain name from Complainant’s mark.
3. Respondent does not own or have any legitimate interests in the <littletwigs.com> domain name.
a. Respondent is not commonly known by Complainant’s LITTLE TWIG mark or associated with Complainant’s business.
i. There is no evidence in the record, including the WHOIS information, that shows Respondent is commonly known by the disputed domain name.
ii. Further, Complainant has never granted Respondent permission to use its mark, nor is Respondent in any way affiliated with Complainant.
b. Respondent is not utilizing the disputed domain name for a legitimate noncommercial use.
i. The disputed domain name confusingly misleads Internet users. Respondent profits from the diverted Internet traffic by selling third-party goods and services similar to those offered by Complainant. See Complainant’s Exhibit O.
4. Respondent registered and is using the <littletwigs.com> domain name in bad faith.
a. Respondent is attempting to disrupt Complainant’s business by diverting Internet traffic away from Complainant and selling third-party goods and services that are in direct competition with those goods and services offered by Complainant. See Complainant’s Exhibit O.
b. Respondent is intentionally attempting to attract Internet users for commercial gain. Respondent is diverting Internet traffic away from Complainant and selling third-party goods and services that are in direct competition with those goods and services offered by Complainant. See Complainant’s Exhibit O.
c. Respondent continued to use the <littletwigs.com> domain name after receiving a cease and desist letter from Complainant. See Complainant’s Exhibit P.
5. Respondent registered the disputed domain name on September 9, 2009.
Respondent
Respondent failed to submit a Response.
1. Respondent’s <littletwigs.com> domain name is confusingly similar to Complainant’s LITTLE TWIG mark.
2. Respondent does not have any rights or legitimate interests in the <littletwigs.com> domain name.
Respondent registered or used the <littletwigs.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(e), 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. 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); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Complainant contends that it has rights in the LITTLE TWIG mark, used in connection with cosmetics and soaps. Complainant states that it is the owner of a registration for the LITTLE TWIG mark with the USPTO (see Reg. No. 3,121,155 registered on July 25, 2006). See Complainant’s Exhibit A. Therefore, the Panel finds that Complainant has rights in the LITTLE TWIG mark pursuant to Policy ¶ 4(a)(i). See Miller Brewing Co. v. Miller Family, FA 104177 (Nat. Arb. Forum Apr. 15, 2002) (finding that the complainant had established rights to the MILLER TIME mark through its federal trademark registrations).
Complainant next contends that the disputed domain name is confusingly similar to Complainant’s mark. Complainant asserts that Respondent’s <littletwigs.com> domain name incorporates Complainant’s mark in its entirety while adding an “s” at the end as well as the gTLD “.com.” The Panel finds that these additions do not distinguish the disputed domain name from Complainant’s mark. First, the Panel finds that the addition of the letter “s” is not enough to distinguish the disputed domain name from Complainant’s mark. See T.R. World Gym-IP, LLC v. D’Addio, FA 956501 (Nat. Arb. Forum May 22, 2007) (finding that the addition of the letter “s” to a registered trademark in a contested domain name is not enough to avoid a finding of confusing similarity under Policy ¶ 4(a)(i)). Next, the Panel finds that the addition of a gTLD is not relevant to confusing similarity analysis. See Isleworth Land Co. v. Lost in Space, SA, FA 117330 (Nat. Arb. Forum Sept. 27, 2002) (“[I]t is a well established principle that generic top-level domains are irrelevant when conducting a Policy ¶ 4(a)(i) analysis.”). The Panel notes that the disputed domain name also eliminates the space between words in Complainant’s mark, and considers this alteration insignificant for Policy ¶ 4(a)(i) purposes as well. See Bond & Co. Jewelers, Inc. v. Tex. Int’l Prop. Assocs., FA 937650 (Nat. Arb. Forum Apr. 30, 2007) (finding that the elimination of spaces between terms and the addition of a gTLD do not establish distinctiveness from the complainant’s mark under Policy ¶ 4(a)(i)). Therefore, the Panel finds that Respondent’s <littletwigs.com> domain name is confusingly similar to Complainant’s LITTLE TWIGS mark pursuant to Policy ¶ 4(a)(i).
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant contends that Respondent does not have any legitimate interests in the <littletwigs.com> domain name. Complainant asserts that Respondent is not commonly known by Complainant’s LITTLE TWIG mark or associated with Complainant’s business. Complainant states that there is no evidence in the record, including the WHOIS information, that shows Respondent is commonly known by the disputed domain name. Further, Complainant notes that it has never granted Respondent permission to use its mark, nor is Respondent in any way affiliated with Complainant. The Panel notes that the WHOIS information lists “lisa julian” as the domain name registrant for the disputed domain name. The Panel looks to the WHOIS information and the record as a whole in determining whether a respondent is commonly known by a disputed domain name. See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the disputed domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark). Therefore, because neither the WHOIS information nor any other evidence in the record supports a finding that Respondent is commonly known by the <littletwigs.com> domain name, coupled with the fact that Complainant did not give Respondent permission to use its LITTLE TWIGS mark, the Panel finds that Respondent is not commonly known by the <littletwigs.com> domain name within the meaning of Policy ¶ 4(c)(ii).
Complainant next alleges that Respondent is not utilizing the disputed domain name for a legitimate noncommercial use. Complainant argues that the disputed domain name confusingly misleads Internet users, and Respondent profits from the diverted Internet traffic by selling third-party goods and services similar to those offered by Complainant. See Complainant’s Exhibit O. Other panels have found such conduct to be in violation of both Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii). See Gardens Alive, Inc. v. D&S Linx, FA 203126 (Nat. Arb. Forum Nov. 20, 2003) (finding that the respondent used a domain name for commercial benefit by diverting Internet users to a website that sold goods and services similar to those offered by the complainant and thus, was not using the name in connection with a bona fide offering of goods or services nor a legitimate noncommercial or fair use). Therefore, the Panel finds that Respondent is not using the <littletwigs.com> domain name in connection with a Policy ¶ 4(c)(i) bona fide offering of goods or services or a Policy ¶ 4(c)(iii) legitimate noncommercial or fair use.
Complainant argues that Respondent registered and is using the <littletwigs.com> domain name in bad faith. Complainant alleges that Respondent is attempting to disrupt Complainant’s business by diverting Internet traffic away from Complainant and selling third-party goods and services that are in direct competition with those goods and services offered by Complainant. See Complainant’s Exhibit O. Such conduct has been found to constitute a bad faith registration and use under Policy ¶ 4(b)(iii). See DatingDirect.com Ltd. v. Aston, FA 593977 (Nat. Arb. Forum Dec. 28, 2005) (“Respondent is appropriating Complainant’s mark to divert Complainant’s customers to Respondent’s competing business. The Panel finds this diversion is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”). Therefore, the Panel finds that Respondent is disrupting Complainant’s business and thus has registered and is using the <littletwigs.com> domain name in bad faith pursuant to Policy ¶ 4(b)(iii).
Complainant next alleges that Respondent is intentionally attempting to attract Internet users for commercial gain. Complainant states that Respondent is diverting Internet traffic away from Complainant and selling third-party goods and services that are in direct competition with those goods and services offered by Complainant. See Complainant’s Exhibit O. Such conduct has been found to constitute a bad faith registration and use under Policy ¶ 4(b)(iv). See Toyota Motor Sales U.S.A. Inc. v. Clelland, FA 198018 (Nat. Arb. Forum Nov. 10, 2003) (“Respondent used <land-cruiser.com> to advertise its business, which sold goods in competition with Complainant. This establishes bad faith as defined in Policy ¶ 4(b)(iv).”). Therefore, the Panel finds that Respondent is attempting to obtain commercial gain by misleading and diverting Internet users, and thus Respondent registered and is using the <littletwigs.com> domain name in bad faith pursuant to Policy ¶ 4(b)(iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <littletwigs.com> domain name be TRANSFERRED from Respondent to Complainant.
John J. Upchurch, Panelist
Dated: July 9, 2013
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