WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Hickory Farms, Inc. v. Names, Domain Case No. D2008-1977 1. The Parties
Complainant is Hickory Farms, Inc. of Ohio, United States of America, represented by Ladas & Parry LLP, United States.
Respondent is Names, Domain of New York, United States. 2. The Domain Name and Registrar
The disputed domain name is registered with Alice's Registry, Inc. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 23, 2008. On December 24, 2008, the Center transmitted by email to Alice's Registry, Inc. a request for registrar verification in connection with the disputed domain name. On January 27, 2009 and February 2, 2009, Alice's Registry, Inc. transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified Respondent of the Complaint, and the proceedings commenced on February 2, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was February 22, 2009. Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on February 23, 2009.
The Center appointed William F. Hamilton as the sole panelist in this matter on March 5, 2009. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7. 4. Factual Background
Complainant's division Pfaelzer Brothers is a purveyor of fine meats. Complainant owns the mark PFAELZER which was accepted for registration with the United States Patent and Trademark Office in 1968 and claimed a first use in 1925.
Respondent registered the disputed domain name on February 1, 2004. 5. Parties' Contentions A. Complainant
Complainant contends the disputed domain name is confusingly similar or identical to the PFAELZER mark, that Respondent has no legitimate rights or interest in the domain name, and that the passive holding of the disputed domain name since registration constitutes bad faith registration. B. Respondent
Respondent did not reply to Complainant's contentions. 6. Discussion and Findings
Under paragraph 4(a) of the Policy, Complainant must prove each of the following:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
Complainant must carry its burden of proof by a preponderance of evidence. Bootie Brewing Company v. Deanna D. Ward and Grabebootie Inc.,WIPO Case No. D2003-0185. A. Identical or Confusingly Similar
The disputed domain name is identical to Complainant's mark. Accordingly, it is beyond contest that Complainant has met the requirements of paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy sets out in particular, but without limitation, three circumstances which, if proved by respondent, shall be evidence of respondent's rights to or legitimate interests in the domain name for the purpose of paragraph 4(a)(ii) of the Policy, namely:
(i) before any notice of the dispute to respondent, respondent's use of, or demonstrable preparation to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods and services; or
(ii) respondent (as an individual, business, or other organization) has been commonly known by the domain name, even if respondent has acquired no trademark or service mark rights; or
(iii) respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
Complainant has made a prima facie showing of a lack of Respondent's rights or legitimate interests in the mark. The disputed domain name was registered long after Complainant registered the PFAELZER mark. Respondent does not appear to have at any time been known by the disputed domain name. Respondent does not appear to have at any time been a licensee of Complainant. Respondent has made no effort to demonstrate any rights or legitimate interests in the disputed domain name to overcome Complainant's prima facie showing. Accordingly, the Panel determines Complainant has demonstrated that Respondent lacks any rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith
The disputed domain name was registered and used in bad faith. The disputed domain name incorporates Complainant's PFAELZER mark in its entirety and only consists of the Complainant's mark. Both Complainant and Respondent are United States entities. A search of the United States Patent and Trademark Office records or a Google search would have quickly revealed the PFAELZER mark and name. Respondent's real identity is masked by the generic name under which the disputed domain name is registered. Respondent refused acceptance of Complainant's cease and desist letter. Respondent did not respond to the Complaint. Respondent has passively held the disputed domain name for years. Respondent has not come forth with any demonstration of good faith use of the disputed domain name. The totality of these circumstances establishes bad faith registration and use under the Policy. Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003 (inaction by a respondent with regard to a domain name can constitute bad faith); Teachers Insurance and Annuity Association of America v. Wreaks Communications Group,WIPO Case No. D2006-0483. See generally. See also Autoshop 2 Di Battaglia Ferruccio C. S.N.C. v. Willamette RF Inc.,WIPO Case No. D2004-0250 (collecting cases citing to Telstra). 7. Decision
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name be transferred to Complainant.
William F. Hamilton
Sole Panelist
Dated: March 19, 2009
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