WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Television Food Network, G. P. d/b/a “Food Network” v. Manoj Mahendran Case No. D2010-0472 1. The Parties
The Complainant is Television Food Network, G.P. d/b/a/ “Food Network” of New York, United States of America, represented by Frost Brown Todd LLC, United States of America.
The Respondent is Manoj Mahendran of Dubai, United Arab Emirates, represented by A. Edwin Prabakar, India. 2. The Domain Name and Registrar
The disputed domain name is registered with R. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 26, 2010. On March 29, 2010, the Center transmitted by email to R. a request for registrar verification in connection with the disputed domain name. On March 30, 2010, R transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on April 1, 2010 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on April 5, 2010. The Center verified that the Complaint together with the amended 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 the Respondent of the Complaint, and the proceedings commenced on April 7, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was April 27, 2010. The Response was filed with the Center on April 27, 2010.
The Center appointed Andrew F. Christie as the sole panelist in this matter on May 4, 2010. 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.
On May 5, 2010, the Complainant transmitted by email to the Center a supplemental filing. On May 13, 2010, the Respondent transmitted by email to the Center an objection to the Complainant's supplemental filing and a response to it. 4. Factual Background
The Complainant has for over 10 years been engaged in the business of creating products and services in the cooking and culinary arts industry, including cable television broadcasting services and the provision of culinary arts information online at its website at the domain name , all of which have been under the trademark FOOD NETWORK. The “Food Network” television network began airing in 1993 and is currently distributed to more than 99 million households in the United States of America, and its branded programming has been licensed for airing in 149 territories across the seven continents, making it one of the largest television networks devoted to cooking, the culinary arts and its corresponding culinary lifestyle, in the world. Information about the Complainant's products and services has been provided via the Complainant's website at the domain name since 1996. This website averages more than eight million visitors per month.
The Complainant owns many United States of America trademark registrations for FOOD NETWORK, the earliest of which date from October 7, 2003. It has used FOOD NETWORK as a trademark continuously in connection with its cooking and culinary arts services since at least as early as 1996.
The disputed domain name was registered by the Respondent on August 2, 2007. Since a date unspecified, the Respondent has used the disputed domain name as the URL for a website that is described on the homepage thereof as a “beta site” and a “work in progress”. The website contains a small number of pages with limited content, including pages with recipes, a calendar and a guest book. Each of the content pages displays banner advertising. 5. Parties' Contentions A. Complainant
The Complainant contends the disputed domain name is confusingly similar to its FOOD NETWORK trademark, because it incorporates the mark in its entirety, only adding the geographical term “Asia”. This addition suggests to consumers that they can go to the Respondent's website and find Television Food Network products and services specific to Asian cuisine. The Complainant contends the Respondent then profits from the resulting confused traffic that gets misdirected to its domain name.
The Complainant contends the Respondent has no rights or legitimate interests in the disputed domain name, because the Complainant secured trademark rights in FOOD NETWORK for cooking and culinary arts services long before the Respondent registered the disputed domain name. The Respondent is not a licensee of, or otherwise affiliated with, the Complainant.
The Complainant contends the disputed domain name was registered and used in bad faith, because the Respondent registered the disputed domain name long after the Complainant's trademarks had become famous and long after the Respondent knew of the Complainant's superior and prior rights. The Respondent is trying to intentionally attract, for commercial gain, Internet users to a website by creating confusion with the Complainant's well known and widely recognized mark. The Respondent is currently developing the disputed domain name site to be sufficiently similar to the Complainant's website by providing recipes, food galleries, memberships and forums for member postings so as to have the same “look and feel” as the Complainant's website. The disputed domain name website is therefore in direct competition with the Complainant's website, and suggests “opportunistic bad faith”. The Respondent's use of a privacy shield provides a further inference of bad faith, because there is no reason for the Respondent to protect its identity in the Whois records other than to frustrate the Complainant's ability to protect its FOOD NETWORK trademark against the Respondent's infringement and cybersquatting. B. Respondent
The Respondent contends that the words “food”, “network” and “asia” are generic and do not have an immediate relationship to the Complainant any more than to the millions of people who speak English. Not only are the domain names of the Respondent and Complainant different, but the content and scope of the websites are not similar or confusing.
The Respondent contends the disputed domain name has been registered in good faith for bona fide use for the development of Asian recipes and culinary taste throughout the world. The intention is “to network with people as a community who are interested in Asian Cuisine”. The Respondent is not a speculator of domain name registrations and the Complainant has not made out a case of speculation in the registration of the disputed domain name.
The Respondent contends the allegation of bad faith fails because: (i) there is no evidence the Respondent registered the disputed domain name in order to sell it to the Complainant or one of its competitors; (ii) the disputed domain name was not registered in order to prevent the Complainant from reflecting its mark in a corresponding domain name; (iii) there is no evidence to show that the Respondent registered the disputed domain name primarily for the purpose of disrupting the business of the Complainant; and (iv) there is no evidence the Respondent intentionally attempted to attract, for commercial gain, Internet users to his site by creating confusion with the Complainant's mark as to affiliation or endorsement of the Respondent's website. 6. Discussion and Findings A. Identical or Confusingly Similar
The disputed domain name incorporates the whole of the Complainant's trademark, and adds the descriptive word “asia”. The addition of the word “asia” does not lessen the inevitable confusion of the domain name with the Complainant's trademark that results from the domain name's incorporation of the entirety of the Complainant's trademark. Accordingly, this Panel finds that the disputed domain name is confusingly similar to a trademark in which the Complainant has rights. B. Rights or Legitimate Interests
The Respondent is not a licensee of, or otherwise affiliated with, the Complainant. The Respondent's claim that the purpose of the website to which the disputed domain name resolves is to “network” with people who are interested in Asian food appears fanciful. The website itself discloses that there are only two members of this “network”, one of whom is the Respondent. The only original content on the website appears to be 18 recipes, posted by one or other of these two members within three days of each other, just prior to the commencement of the dispute. This Panel is satisfied that this use of the disputed domain is not bona fide. This Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith
The Complainant has conducted a substantial business of international renown for more than a decade under its trademark FOOD NETWORK. This Panel is persuaded that the Respondent was likely aware of the Complainant's trademark when he registered the disputed domain name. Moreover, this Panel is persuaded that the Respondent has used the disputed domain name with the intention of attracting Internet users to his website by creating a likelihood of confusion with the Complainant's trademark as to the source, sponsorship, affiliation, or endorsement of the website. Pursuant to paragraph 4(b)(iv) of the Policy, this Panel finds that the disputed domain name has been registered and is being used in bad faith. 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 the Complainant.
Andrew F. Christie
Sole Panelist
Dated: May 18, 2010
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