Food for the Hungry v. Grand Aaron
Claim Number: FA1609001694931
Complainant is Food for the Hungry (“Complainant”), Arizona, USA. Respondent is Grand Aaron (“Respondent”), Turkey.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <foodforthehungry.net>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
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.
David A. Einhorn appointed as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 22, 2016; the Forum received payment on September 22, 2016.
On September 23, 2016, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <foodforthehungry.net> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com 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 September 28, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 18, 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@foodforthehungry.net. Also on September 28, 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 October 26, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David A. Einhorn 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 has rights in the FOOD FOR THE HUNGRY mark based on its first use of the mark in commerce on January 1, 1971, and registration of the mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 5,010,960, filed June 22, 2015 and registered Aug. 2, 2016). Respondent’s domain has copied the design, content, and Complainant’s mark at the disputed domain name to solicit donations.
Respondent has no rights or legitimate interests in the disputed domain name. Respondent is directly copying content from Complainant’s legitimate website <fh.org> at the disputed domain name and does so to illegitimately solicit donations from visitors who mistakenly assume that Respondent’s domain name is offering the same charity services as Complainant.
Respondent has registered and is using the disputed domain name in bad faith as the domain is being used to confuse and illegally solicit donations from donors.
B. Respondent
Respondent has failed to submit a formal Response in this proceeding. The Panel notes that the disputed domain name was created on January 2, 2016.
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 claims to have rights in the FOOD FOR THE HUNGRY mark based on its first use of the mark in commerce on January 1, 1971, and registration of the mark with the USPTO (Reg. No. 5,010,960, filed June 22, 2015, and registered Aug. 2, 2016). Panels have held that registration of a mark with the USPTO is sufficient to establish a complainant’s rights in a mark. See Paisley Park Enters. v. Lawson, FA 384834 (Forum Feb. 1, 2005) (concluding that the complainant had established rights in the PAISLEY PARK mark under Policy ¶4(a)(i) through registration of the mark with the USPTO). Thus, this Panel finds that Complainant has established rights in the FOOD FOR THE HUNGRY mark.
Complainant argues that Respondent’s domain has copied the design, content, and Complainant’s mark on the disputed domain name to solicit donations. Respondent’s domain name includes the entire FOOD FOR THE HUNGRY mark. The Panel therefore concludes that Respondent has copied the FOOD FOR THE HUNGRY mark in the disputed domain name and that the domain is identical to the mark pursuant to Policy ¶ 4(a)(i).
The Panel concludes that Respondent is not commonly known by the disputed domain name based on the WHOIS records. WHOIS information associated with the disputed domain name identifies Respondent as, “Grand Aaron.” Other panels have similarly found that a respondent is not commonly known by a disputed domain name based on WHOIS information and a lack of information to the contrary. See Chevron Intellectual Property LLC v. Fred Wallace, 1626022 (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).
Complainant argues that Respondent has no rights or legitimate interests in the disputed domain name. To support this argument, Complainant claims that Respondent has used the disputed domain name to resolve to a website mimicking Complainant’s legitimate website located at <fh.org>. Panels have held that using a confusingly similar domain name to attempt to pass off as another demonstrates a lack of rights or legitimate interests in the disputed domain name. See MO Media LLC v. NeXt Age Technologies LTD, FA 220031 (Forum Feb. 18, 2004) (finding the respondent lacked rights and legitimate interests in the disputed domain name when the respondent copied the complainant’s websites in their entirety at the disputed domain names). Panels have also concluded that passing off behavior does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Kmart of Mich., Inc. v. Cone, FA 655014 (Forum April 25, 2006) (The panel found the respondent’s attempt to pass itself of as the complainant was not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii) when the respondent used the disputed domain name to present users with a website that was nearly identical to the complainant’s website). Thus, the Panel concludes that Respondent lacks rights or legitimate interests in the disputed domain name.
Complainant claims that Respondent has registered and is using the disputed domain name in bad faith as the domain is being used to confuse and illegally solicit donations from donors. Respondent’s domain allegedly resolves to a website soliciting donations from users that would otherwise go to feeding those who are hungry. Complainant claims that Respondent solicits these donations illegitimately. As these allegations are undisputed by Respondent, the Panel finds that Respondent has registered and used the disputed domain name to pass itself off as Complainant and to solicit donations in bad faith. See Am. Int’l Group, Inc. v. Busby, FA 156251 (Forum May 30, 2003) (finding that the disputed domain name was registered and used in bad faith where the respondent hosted a website that “duplicated Complainant’s mark and logo, giving every appearance of being associated or affiliated with Complainant’s business . . . to perpetrate a fraud upon individual shareholders who respected the goodwill surrounding the AIG mark”).
Thus, Complainant has also satisfied ¶4(a)(iii) of the Policy.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <foodforthehungry.net> domain name be TRANSFERRED from Respondent to Complainant.
David A. Einhorn, Panelist
Dated: November 9, 2016
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