Energizer Brands, LLC v. Lillian Isabella
Claim Number: FA1607001682500
Complainant is Energizer Brands, LLC (“Complainant”), represented by John Gary Maynard, Virginia, USA. Respondent is Lillian Isabella (“Respondent”), North Carolina, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <zenergizerbunny.com>, registered with Network Solutions, 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 July 6, 2016; the Forum received payment on July 6, 2016.
On July 6, 2016, Network Solutions, LLC confirmed by e-mail to the Forum that the <zenergizerbunny.com> domain name is registered with Network Solutions, LLC and that Respondent is the current registrant of the name. Network Solutions, LLC has verified that Respondent is bound by the Network Solutions, 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 July 8, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 28, 2016 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@zenergizerbunny.com. Also on July 8, 2016, 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 August 4, 2016, 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, Energizer Brands, LLC, is a leading manufacturer of batteries. In connection with this business, Complainant has registered the ENERGIZER BUNNY mark with the United States Patent and Trademark Office (“USPTO”) as well as many other trademark agencies throughout the world (e.g., Reg. No. 2,677,374, registered Jan. 21, 2003). Respondent’s domain <zenergizerbunny.com> is confusingly similar to the ENERGIZER BUNNY mark as the domain includes the entire mark and merely adds the generic top-level domain (“gTLD”) “.com,” and a common typographical error through the addition of the letter “z.”
Respondent, Lillian Isabella, has no rights or legitimate interests in the disputed domain name. Respondent has not been commonly known by the disputed domain or authorized to use ENERGIZER marks, and is not a licensee of Complainant. Further, Respondent’s use of the domain, to resolve to a website offering yoga services unrelated to the ENERGIZER marks, is not a bona fide offering of goods or services or a legitimate noncommercial or fair use.
Respondent has registered and is using the disputed domain name in bad faith. Respondent, through use of Complainant’s ENERGIZER BUNNY mark, has created a likelihood of confusion between the mark and the domain from which Respondent is commercially benefitting.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is a leading manufacturer of batteries. Complainant owns rights in the ENERGIZER BUNNY mark through registration with the USPTO and many other trademark agencies throughout the world (e.g., Reg. No. 2,677,374, registered Jan. 21, 2003). Respondent’s domain <zenergizerbunny.com> is confusingly similar to the ENERGIZER BUNNY mark.
Respondent registered the <zenergizerbunny.com> domain name on December 30, 2015.
Respondent has no rights or legitimate interests in the <zenergizerbunny.com> domain name. Respondent has not been commonly known by the disputed domain or authorized to use ENERGIZER marks, and is not a licensee of Complainant. Further, Respondent’s use of the domain, to resolve to a website offering yoga services unrelated to the ENERGIZER marks, is not a bona fide offering of goods or services or a legitimate noncommercial or fair use.
Respondent has registered and is using the disputed domain name in bad faith. Respondent, through use of Complainant’s ENERGIZER BUNNY mark, has created a likelihood of confusion between the mark and the domain from which Respondent is commercially benefitting.
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 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 (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 has rights in the ENERGIZER BUNNY mark through registration with the USPTO and other trademark agencies throughout the world. See Microsoft Corp. v. Burkes, FA 652743 (Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”).
Respondent’s <zenergizerbunny.com> domain is confusingly similar to the ENERGIZER BUNNY mark. The disputed domain differs from the mark through the addition of the gTLD “.com,” and the letter “z.”
Respondent is not commonly known by the <zenergizerbunny.com> domain name. The WHOIS information for the domain lists “Lillian Isabella” as registrant. See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name).
Respondent is not using the <zenergizerbunny.com> domain to make a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶ 4(c)(i) or ¶ 4(c)(iii). Respondent’s domain resolves to a website offering yoga services unrelated to the ENERGIZER marks presumably for pecuniary gain. See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Forum Sept. 30, 2003) (“Respondent’s demonstrated intent to divert Internet users seeking Complainant’s website to a website of Respondent and for Respondent’s benefit is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”).
Respondent, through use of Complainant’s ENERGIZER BUNNY mark, has created a likelihood of confusion between the mark and the <zenergizerbunny.com> domain from which Respondent is commercially benefitting. Respondent’s use of a domain confusingly similar to another’s mark demonstrates a bad faith attempt to confuse and attract for commercial gain under Policy ¶ 4(b)(iv). See Allianz of Am. Corp. v. Bond, FA 680624 (Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting).
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 <zenergizerbunny.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: August 17, 2016
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