WIPO Domain Name Decision: D2009-0547 (function(w,d,s,l,i){w[l]=w[l]||[];w[l].push({'gtm.start':new Date.getTime,event:'gtm.js'});var f=d.getElementsByTagName(s)[0],j=d.createElement(s),dl=l!='dataLayer'?'&l='+l:'';j.async=true;j.src=''+i+dl;f.parentNode.insertBefore(j,f);})(window,document,'script','dataLayer','GTM-P7RLS2'); WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Kraft Foods Global Brands, LLC v. Jet Stream Enterprises Limited, Jet Stream Case No. D2009-0547 1. The PartiesThe Complainant is Kraft Foods Global Brands, LLC of the state of Illinois, United States of America, represented by its in-house counsel Susan H. Frohling.The Respondent is Jet Stream Enterprises Limited, Jet Stream of St Johns, Antigua and Barbuda. 2. The Domain Name and RegistrarThe disputed domain name is registered with eNom. 3. Procedural HistoryThe Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 24, 2009. On April 27, 2009, the Center transmitted by email to eNom a request for registrar verification in connection with the disputed domain name. On April 28, 2009, eNom transmitted by email to the Center its verification response confirming that the 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 May 15, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was June 4, 2009. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on June 8, 2009.The Center appointed Paul E. Mason as the sole panelist in this matter on June 22, 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.Even though the Respondent has defaulted by not responding to the Complaint, in these UDRP proceedings Complainant must still prove all necessary elements of its case in order to prevail. 4. Factual BackgroundComplainant has registered some 34 trademarks in the United States alone which contain the key word “Kraft”. All of these deal with the food industry and a number of them are specifically for food recipes, see Annex 2 to the Complaint. In the U.S. as is accepted trademark law, basic trademark rights accrue from actual use in commerce rather than registration, and it is undisputed that Complainant has for many years been using the KRAFT name for food-related products and services in commerce in the U.S. 5. Parties' Contentions A. ComplainantIn its Complaint, Complainant indicates that it has been engaged in the manufacture, distribution, sale and advertising of food and beverage related products bearing the KRAFT trademark on a continuous basis since 1909. Complainant's net revenues for 2007 in the U.S. alone were more than U.S. $ 21 billion. It spent some 5 billion U.S. dollars on mass media advertising that year. Because of these efforts the KRAFT trademark has become famous, strong and inherently distinctive worldwide as a well-known brand for food related products.Complainant contends that Respondent, on the other hand, has built a business of cybersquatting on others' marks and reputations in order to make improper financial gains.In this case, Complainant's arguments are that the domain name is essentially the same as its own famous mark, that Respondent has no legitimate rights or interests therein, and that the domain name was registered and used in bad faith as evidenced by Respondent's failure to reply to its demand letters and Respondent's history of cybersquatting. B. RespondentRespondent did not reply to Complainant's contentions. 6. Discussion and Findings A. Identical or Confusingly SimilarThe domain name is essentially almost the same as Kraft's own trademark and variations thereof which have been registered. While none of the registered trademarks of Complainant in Annex 2 to the Complaint contain the specific word “recipe”, this suffix is so descriptive of many of Complainant's business activities as to create even further confusion with Complainant in the minds of visitors to Respondent's website deriving from the domain name. Therefore the Panel finds that the domain name is confusingly similar to Complainant's trademarks. B. Rights or Legitimate InterestsThere has been no indication whatsoever of any rights or legitimate interests of Respondent in the domain name. The prevailing view on this issue in UDRP cases is while the overall burden of proof rests with Complainant, panels have recognized that this could result in the often impossible task of proving a negative, requiring information that is often primarily within the knowledge of the respondent. Therefore a complainant is required to make out a prima facie case that the respondent lacks rights or legitimate interests. Once such prima facie case is made, respondent carries the burden of demonstrating rights or legitimate interests in the domain name. If the respondent fails to do so, a complainant is deemed to have satisfied paragraph 4(a)(ii) of the UDRP. See Croatia Airlines d.d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455; Belupo d.d. v. WACHEM d.o.o.,WIPO Case No. D2004-0110.In the present case, Complainant has made out a prima facie case that the Respondent lacks rights or legitimate interests which Respondent has not rebutted. Therefore the Panel finds Respondent lacks rights or legitimate interests in the domain name. C. Registered and Used in Bad FaithComplainant contends that Respondent registered the domain name in bad faith. As evidence, in Annex 3 to the Complaint it has provided a database search by WhoIs to imply cybersquatting by Respondent which indicates Respondent holds between 3,596 - 3,686 domain names. A sample domain registration by Respondent with a typographical variation of the Philip Morris company brand name is included.In light of the present record the Panel agrees and finds ample evidence of bad faith registration by Respondent.Complainant argues that on its website deriving from the domain name, “” Respondent has been unjustly taking advantage of the goodwill in the KRAFT trademark built up over the years. A visit to this site by the Panel on June 22, 2009 revealed that the site consists primarily of links to other websites dealing not only with food products, but also dieting, obtaining U.S. immigration green cards, language lessons, etc. Although we are not privy to financial arrangements by Respondent with respect to this site, this pattern of linking to other sites combined with Respondent's history of registering a multiplicity of domain names leads the Panel to the conclusion on balance that the domain name is being used in bad faith by treading on confusion with Complainant's trademarks in order to generate click-through revenues or similar for Respondent, with many of the links involved dealing with food products. Therefore the Panel finds sufficient evidence of bad faith use of the domain name, which Respondent has not contested. 7. DecisionFor 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 the Complainant. Paul E. Mason Sole PanelistDate: June 29, 2009
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