King Kutter, Inc. v. meili yan
Claim Number: FA2304002038992
Complainant is King Kutter, Inc. (“Complainant”), USA, represented by Timothy A. Bush of DENTONS SIROTE PC, Alabama, USA. Respondent is meili yan (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <kingkutters.com>, registered with Name.com, Inc..
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.
Ho-Hyun Nahm, Esq. as Panelist.
Complainant submitted a Complaint to Forum electronically on April 5, 2023; Forum received payment on April 5, 2023.
On April 6, 2023, Name.com, Inc. confirmed by e-mail to Forum that the <kingkutters.com> domain name is registered with Name.com, Inc. and that Respondent is the current registrant of the name. Name.com, Inc. has verified that Respondent is bound by the Name.com, Inc. 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 7, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 27, 2023 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@kingkutters.com. Also on April 7, 2023, 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, Forum transmitted to the parties a Notification of Respondent Default.
On May 2, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Ho-Hyun Nahm, Esq. as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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
i) Complainant offers farming equipment. Complainant has rights in the KING KUTTER mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 4,024,945 registered September 13, 2011). The disputed domain name is virtually identical and confusingly similar to Complainant’s mark because it incorporates the KING KUTTER mark in its entirety and adds the letter “s” and the “.com” gTLD.
ii) Respondent has no legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name and Complainant has not authorized or licensed Respondent any rights in the KING KUTTER mark. Additionally, Respondent does not use the disputed domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, the disputed domain name resolves to a page that displays Complainant’s products in an attempt to pass off as Complainant. Respondent uses the disputed domain name to engage in typosquatting.
iii) Respondent registered and uses the disputed domain name in bad faith. Respondent registered the disputed domain name to pass off as Complainant and divert customers for commercial gain. Respondent uses the disputed domain name for a phishing scheme. Respondent is engaged in typosquatting. Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the KING KUTTER mark.
B. Respondent
Respondent did not submit a response in this proceeding.
1. The disputed domain name was registered on September 6, 2022.
2. Complainant has established rights in the KING KUTTER mark through its registration of the mark with the USPTO (e.g., Reg. No. 4,024,945 registered September 13, 2011).
3. Respondent copied content, including images and product descriptions, directly from Complainant’s website and attempted to pass itself off as 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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
Complainant asserts rights in the KING KUTTER mark based upon the registration of the mark with the USPTO (e.g., Reg. No. 4,024,945 registered September 13, 2011). Registration of a mark with the USPTO is a valid showing of rights in a mark under Policy ¶ 4(a)(i). Since Complainant provides evidence of registration of the KING KUTTER mark with the USPTO, the Panel finds that Complainant has rights in the mark under Policy 4(a)(i).
Complainant argues the disputed domain name <kingkutters.com> is identical or confusingly similar to Complainant’s KING KUTTER mark. The addition of a gTLD and a single letter fails to sufficiently distinguish a disputed domain name from a mark per Policy ¶ 4(a)(i). See PathAdvantage Associated v. VistaPrint Technologies Ltd, FA 1625731 (Forum July 23, 2015) (holding that the <pathadvantages.com> domain name was confusingly similar to the PATHADVANTAGE trademark because the domain name “merely adds the letter ‘s’ to Complainant’s mark”); see also Metro-Goldwyn-Mayer Studios Inc. v. Antigua Domains, FA 1073020 (Forum Oct. 17, 2007) (“[T]he inclusion of the generic top-level domain ‘.com’ is inconsequential to the Policy ¶ 4(a)(i) analysis, as a top-level domain is required of all domain names.”). The disputed domain name contains the KING KUTTER mark in its entirety while adding the letter “s” and the “.com” gTLD. Therefore, the Panel finds the disputed domain name is confusingly similar to Complainant’s mark per 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), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
Complainant contends that Respondent lacks rights or legitimate interests in the disputed domain name since Respondent is not commonly known by the disputed domain name and Complainant has not authorized or licensed to Respondent any rights in the KING KUTTER mark. WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name). In addition, a lack of authorization to use a complainant’s mark may also indicate that a respondent is not commonly known by the disputed domain name. See Deutsche Lufthansa AG v. Mohamed elkassaby, FA 1801815 (Forum Sep. 17, 2018) (“The WHOIS lists “Mohamed elkassaby” as registrant of record. Coupled with Complainant’s unrebutted assertions as to absence of any affiliation between the parties, the Panel finds that Respondent is not commonly known by the Domain Name in accordance with Policy ¶ 4(c)(ii).”). The WHOIS information for the disputed domain name lists the registrant as “meili yan.” Complainant further asserts it has not licensed or otherwise authorized Respondent to use Complainant’s KING KUTTER mark. Therefore, the Panel finds Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Complainant argues that Respondent fails to use the disputed domain name in connection with a bona fide offering of goods and services or legitimate noncommercial or fair use as Respondent purports to be Complainant through its use of a fraudulent webpage bearing Complainant’s logo and copyrighted photos. An attempt by a respondent to pass itself off as a complainant under false pretenses may support a finding of failure to make a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding the respondent did not use the domain name to make a bona fide offering of goods or services per Policy ¶ 4(c)(i) or for a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii) where the website resolving from the disputed domain name featured the complainant’s mark and various photographs related to the complainant’s business). Complainant provides evidence of likeness between the disputed domain name’s resolving website and Complainant’s webpage, including Respondent’s use of Complainant’s copyrighted logo and product photos. Therefore, the Panel finds that Respondent fails to use the disputed domain name for a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶ 4(c)(i) or (iii).
The Panel finds that Complainant has made out a prima facie case that arises from the considerations above. All of these matters go to make out the prima facie case against Respondent. As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.
Complainant argues that Respondent has registered and used the disputed domain name in bad faith because the disputed domain name incorporates the KING KUTTER mark in an attempt to pass Respondent off as Complainant through the use of a fraudulent webpage. Use of a disputed domain name to imitate a complainant’s website can be evidence of an attempt to attract users for commercial gain under Policy ¶ 4(b)(iv). See Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) where “Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant.”). See also Bittrex, Inc. v. Caroline Alves Maia, FA 1796113 (Forum Aug. 6, 2018) (finding the respondent registered and used the domain name in bad faith per Policy ¶ 4(b)(iv) because the respondent used the disputed domain name to present users with a website that was “virtually identical, with the same color scheme, the same layout and the same substantive content” and used the website to gain access to users’ cryptocurrency accounts). As previously noted, Complainant provides screenshots of the disputed domain name’s resolving website that Respondent utilized Complainant’s logo and product photos in an effort to misrepresent Respondent as Complainant. Therefore, the Panel finds that Respondent registered and used the disputed domain name in bad faith per Policy ¶ 4(b)(iv).
Complainant further argues that Respondent had actual knowledge of Complainant's rights in the KING KUTTER mark given Respondent’s copying of the information contained on Complainant’s website. The Panel notes that through over forty years in the farm equipment business, Complainant has established itself a trusted, knowledgeable, and reliable source for purchasing high quality farm equipment. Complainant has spent enormous sums of time, effort, and money on developing the KING KUTTER brand and reputation, as well on advertising and promoting the products offered and sold under the KING KUTTER marks or through its website. As result of these efforts, Complainant’s mark KING KUTTER has become well-known and accrued immense goodwill as a trusted brand. The Panel infers, due to the notoriety of Complainant’s mark and the manner of use of the disputed domain name that Respondent had knowledge of Complainant’s rights in the KING KUTTER mark at the time of registering the disputed domain name, and finds that Respondent registered the disputed domain in bad faith under Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <kingkutters.com> domain name be TRANSFERRED from Respondent to Complainant.
Ho-Hyun Nahm, Esq., Panelist
Dated: May 5, 2023
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