KELLOGG NORTH AMERICA COMPANY v. Domain Admin
Claim Number: FA1404001554903
Complainant is KELLOGG NORTH AMERICA COMPANY (“Complainant”), Michigan, USA. Respondent is Domain Admin (“Respondent”), Hong Kong, China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <kellog.com>, registered with Moniker Online Services 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 National Arbitration Forum electronically on April 21, 2014; the National Arbitration Forum received payment on April 21, 2014.
On April 23, 2014, Moniker Online Services LLC confirmed by e-mail to the National Arbitration Forum that the <kellog.com> domain name is registered with Moniker Online Services LLC and that Respondent is the current registrant of the name. Moniker Online Services LLC has verified that Respondent is bound by the Moniker Online Services 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 25, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 15, 2014 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@kellog.com. Also on April 25, 2014, 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 May 20, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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.
A. Complainant
Complainant uses the KELLOGG’S mark connection with the sale of foodstuffs and other products. Complainant has registered this mark with the United States Patent and Trademark Office ("USPTO") (e.g., Reg. No. 115,348, registered Feb. 6, 1917). Respondent’s <kellog.com> domain name is confusingly similar to the KELLOGG’S mark. The domain name is a mere misspelling of the KELLOGG’S mark along with the addition of the generic top-level domain (“gTLD”) “.com.”
Respondent is not known by this disputed domain name. The WHOIS information suggests Respondent is not known by this domain name. Respondent has made no bona fide offering through this domain name’s website. The <kellog.com> domain name is used to host hyperlink advertisements.
Respondent is disrupting Complainant’s business. Respondent is presumably enjoying commercial advertising proceeds through its use of the <kellog.com> domain name. Respondent is generating this revenue through the likelihood that Internet users visiting the website will mistakenly believe Complainant is affiliated with the website. Respondent had to have known of Complainant’s interest in this <kellog.com> domain name prior to registering the domain name. The totality of the circumstances strongly suggests Respondent targets the advertisements on the disputed domain name’s website to feature goods related to the KELLOGG’S mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, KELLOGG NORTH AMERICA COMPANY, uses the KELLOGG’S mark connection with the sale of foodstuffs and other products. Complainant has registered this mark with the United States Patent and Trademark Office ("USPTO") (e.g., Reg. No. 115,348, registered Feb. 6, 1917).
Respondent, Domain Admin, registered the <kellog.com> domain name on December 7, 2012.
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 owns rights in the KELLOGG’S mark Policy ¶ 4(a)(i) through registration with the USPTO. See Priceline.com, Inc. v. Domain Admin / Private Registrations Aktien Gesellschaft, FA 1547179 (Nat. Arb. Forum Apr. 24, 2014) (finding that USPTO registration satisfied Policy ¶ 4(a)(i), even when the respondent was located in Saint Vincent and the Grenadines).
Respondent’s <kellog.com> domain name is confusingly similar to the KELLOGG’S mark under Policy ¶ 4(a)(i). The domain name is a misspelling of the KELLOGG’S mark along with the addition of the gTLD “.com.” The domain name is formed by removing the apostrophe, the letter “s,” and one instance of the letter “g.” See Neuberger Berman Inc. v. Jacobsen, D2000-0323 (WIPO June 12, 2000) (finding that the respondent’s <newbergerberman.com> domain name was confusingly similar to the complainant’s NEUBERGER BERMAN mark despite the slight difference in spelling).
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).
Respondent is not commonly known by the <kellog.com> domain name. The WHOIS information lists “Domain Admin” as the domain name’s registrant. Complainant has not granted Respondent permission to use its mark.
The <kellog.com> domain name is used to host competing hyperlink advertisements. Use of a confusingly similar domain name to host hyperlinks is neither a Policy ¶ 4(c)(i) bona fide offering of goods or services, nor a Policy ¶ 4(c)(iii) legitimate noncommercial or fair use. See H-D Michigan Inc. v. Buell, FA 1106640 (Nat. Arb. Forum Jan. 2, 2008) (finding that, because the “[r]espondent’s disputed domain names resolve to a website featuring a series of advertising links to various third-parties, many of whom offer products and services in direct competition with those offered under [the complainant’s] mark,” the respondent is not using the disputed domain names for a bona fide offering of goods or services or a legitimate noncommercial or fair use).
Respondent is disrupting Complainant’s business. Among the advertisements viewable through the domain name’s website are links to competing products such as “Breakfast Restaurants,” “Healthy Snacks,” and “Recipes.” Respondent registered and is using the disputed domain name in bad faith under Policy ¶ 4(b)(iii). See United Servs. Auto. Ass’n v. Savchenko, FA 1105728 (Nat. Arb. Forum Dec. 12, 2007) (“Respondent currently utilizes the disputed domain name, <usaa-insurance.net>, to resolve to a website featuring links to third-party competitors of Complainant. The Panel finds such use establishes Respondent registered and is using the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iii).”).
Respondent is presumably receiving commercial advertising proceeds through its use of the <kellog.com> domain name. Respondent is generating this revenue through the likelihood that Internet users visiting the website will mistakenly believe Complainant is affiliated with the website. Respondent registered and is using the disputed domain name in bad faith under Policy ¶ 4(b)(iv). See AOL LLC v. AIM Profiles, FA 964479 (Nat. Arb. Forum May 20, 2007) (finding that the respondent registered and used the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iv) because the respondent was commercially gaining from the likelihood of confusion between the complainant’s AIM mark and the competing instant messaging products and services advertised on the respondent’s website which resolved from the disputed domain name).
Respondent had actual knowledge of Complainant’s KELLOGG’S mark prior to registering the <kellog.com> domain name. Therefore, Respondent registered and uses the<kellog.com> domain name in bad faith under Policy ¶ 4(a)(iii). See,e.g., Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Nat. Arb. Forum Feb. 6, 2014).
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 <kellog.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: June 3, 2014
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