Kellogg North America Company v. Lakhvinder Singh
Claim Number: FA1608001686534
Complainant is Kellogg North America Company (“Complainant”), Michigan, USA. Respondent is Lakhvinder Singh (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <kelloggs.global> and <kellogg.global>, (‘the Domain Names’) registered with 1&1 Internet Se.
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.
Dawn Osborne of Palmer Biggs Legal as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 1, 2016; the Forum received payment on August 1, 2016.
On August 5, 2016 and August 8, 2016, 1&1 Internet Se confirmed by e-mail to the Forum that the <kelloggs.global> and <kellogg.global> Domain Names are registered with 1&1 Internet Se and that Respondent is the current registrant of the names. 1&1 Internet Se has verified that Respondent is bound by the 1&1 Internet Se 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 August 8, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 29, 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@kelloggs.global, postmaster@kellogg.global. Also on August 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 September 7, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne of Palmer Biggs Legal 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 names be transferred from Respondent to Complainant.
A. Complainant
Complainant is a multinational food manufacturing company founded in 1906 with current annual sales in excess of $13 billion selling in more than 180 countries. It has registered trade marks for KELLOGG’S in, inter alia, the USA and Europe. It owns Kelloggs.com which was registered in 1995.
The Domain Names contain the KELLOGG’S mark in its entirety resulting in them being identical or confusingly similar to the Complainant’s mark for the purposes of the Policy. The removal of the apostrophe or ‘s’ in the Complainant’s mark does not diminish the confusing similarity between the Domain Names and the KELLOGG’S mark. The addition of a top level domain is irrelevant.
Respondent is not sponsored or affiliated by the Complainant in any way. Complainant has not given the Respondent permission to use the KELLOGG’S mark in any way.
Respondent is not commonly known by the Domain Names.
Respondent is using the Domain Names to redirect Internet users to web sites featuring links to third party web sites some of which directly compete with the Complainant’s business including breakfast cereal and related products for commercial gain. Some of the links directly reference the Complainant and its business showing knowledge of the same. This is not a bona fide offering of goods and services or non-commercial or fair use.
Accordingly the Respondent has no rights or legitimate interests in the Domain Names.
The Domain Names were registered April 12, 2016.
Respondent has intentionally intended to attract Internet users to the Respondent’s web site by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship affiliation or endorsement of the Respondent’s web site or product or service on the same.
The Respondent holds registrations for several other domain names containing the trade marks of well-known brands and businesses showing a pattern of cybersquatting including Yamaha.global, Expedia.global, MasterCard.global and Mattel.global.
The Domain Names were registered under a privacy service and Respondent has ignored Complainant’s attempts to settle this dispute outside of these proceedings.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has registered trade marks for KELLOGG’S in, inter alia, the USA and Europe. It owns Kelloggs.com, which was registered in 1995.
The Domain Names were registered April 12, 2016 and have been used for pay per links to commercial sites not connected to the Complainant.
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.”).
As such the Panel holds that Paragraph 4 (a) (i) of the Policy has been satisfied.
Identical and/or Confusingly Similar
<kelloggs.global> consists of the Complainant's KELLOGG’S mark without an apostrophe and the gTLD .global. <kellogg.global> consists of a sign confusingly similar to the Complainant’s mark KELLOGG’S which does not reproduce the original apostrophe and ‘s’ at the end of the mark and the gTLD .global.
Panels have held that the inclusion or exclusion of a letter ‘s’ and punctuation such as apostrophes does not distinguish a domain from a mark. See Daddy’s Junky Music Stores, Inc. v. Kausar, FA 140598 (Forum Feb. 11, 2003) (The lack of an apostrophe in a domain name is not a distinguishing difference because punctuation is not significant in determining the similarity of a domain name and a mark), Also ShipCarsNow, Inc. v. Wet Web Design LLC, FA 1601260 (Forum Feb. 26, 2015) (establishing a confusing similarity between ShipCarNow.com and the mark SHIPCARSNOW because the domain name simply removes the ‘s’.).
gTLDs do not, in general, serve to distinguish domain names from a mark, which is the distinctive component of the domain names. See Red Hat Inc. v. Haecke FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark). .global is a generic top level domain and does not distinguish the Domain Names from the Complainant’s KELLOGG’s mark.
Accordingly, the Panel holds that the Domain Names are confusingly similar, for the purposes of the Policy, to a mark in which the Complainant has rights.
As such the Panel holds that Paragraph 4 (a) (i) of the Policy has been satisfied.
Rights or Legitimate Interests
The Respondent does not appear to be commonly known by the Domain Names, and is not making a legitimate non-commercial or fair use of these names. The site appears to be set up for commercial benefit to compete with the Complainant using the latter's intellectual property rights to make a profit by pointing to third party links unconnected with the Complainant. See ALPITOUR SpA v. Albloushi FA 888651 (Forum Feb. 26, 2007) (rejecting the respondent's contentions of rights and legitimate interests because the respondent was merely using the domain name to operate a web site containing links to various competing commercial web sites which the panel did not find to be bona fide use in relation to goods and service under the Policy. ).
As such the Panel finds that the Respondent does not have rights or a legitimate interest in the Domain Names and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
The Respondent's use of the sites connected to the Domain Names is commercial and he is using them to make a profit from linking to third party web sites in a confusing manner. The Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to his websites by creating a likelihood of confusion with the Complainant's trade marks as to the source, sponsorship, affiliation or endorsement of the web site. See Dovetail Ventures LLC v. Klayton Thorpe, FA 1506001625786 (Forum Aug. 2, 2015) (holding that the respondent had acted in bad faith under Policy 4(b)(iv) where it used the disputed domain name to host a variety of hyperlinks unrelated to the complainant’s business through which the Respondent presumably gained).
As such, the Panel holds that the Complainant has made out its case that the Domain Names were registered and used in bad faith and has satisfied the third limb of the Policy. The Panel also notes the allegation that the Respondent owns several other domain names that appear to be famous brands, but no evidence of this has been submitted. In any event, in light of the above finding, it is not necessary to consider further possible grounds of bad faith in this case.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <kelloggs.global> and <kellogg.global> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page