The Complainant is Blue Bell Creameries, L.P. of Brenham, Texas United States of America, represented by Akin, Gump, Strauss, Hauer & Feld, United States of America.
The Respondent is Private Whois of Grand Cayman, Cayman Islands, Overseas Territory of the United Kingdom of Great Britain and Northern Ireland / Telecom Tech Corp. of Panama City, Panama. 2. The Domain Name and Registrar
The disputed domain name is registered with Bargin Register Inc. (the “Registrar”) 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 15, 2011. On February 16, 21, 22 and 25, 2011, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 25, 2011, the Registrar 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 March 1, 2011 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 March 3, 2011.
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 March 4, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was March 24, 2011. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 25, 2011.
The Center appointed Michael J. Spence as the sole panelist in this matter on April 7, 2011. 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
The Complainant, which was founded in 1907, is the producer and distributor of the third best selling ice cream products in the United States under trade mark BLUE BELL and has done so since 1930. The Respondent registered the disputed domain name in 2006 and renewed the domain name in 2010. The Complainant was originally unaware of the registration. 5. Parties’ Contentions A. Complainant
The Complainant contends that the disputed domain name is identical or confusingly similar to its well-known trade marks. It further contends that the Respondent has no rights or legitimate interests in the disputed domain name and is using the web site operated under the disputed domain name to advertise ice cream related products that have no connection with those of the Complainant, such use constituting bad faith. The Complainant further contends that various apparent attempts by the Respondent to conceal its identity as the registered proprietor of the disputed domain name further support a finding of bad faith. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
The disputed domain name is only distinguished from the Complainant’s trade marks in that the word “Creamery” is in the singular in the disputed domain name rather than the plural as it is in the trade marks. There is little doubt that the two would be indistinguishable in the recall of the average Internet user. The disputed domain name is therefore clearly identical or confusingly similar to the Complainant’s trade marks.
The Panel therefore finds that the Complainant has established the first element of paragraph 4(a) of the Policy. B. Rights or Legitimate Interests
It is for the Complainant to establish, at least prima facie that the Respondent has no rights or legitimate interests in the disputed name (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 this case, the absence of such a right or legitimate interests can reasonably be deduced from: the reputation of the disputed domain name and the inevitable conclusion that any business choosing to operate under the disputed domain name would have necessarily been aware of the likelihood of consumer confusion; the fact that (based on screenshots provided with the Complaint) the web site operating under the disputed domain name offers (at least at or around the time the Complaint was filed), and has offered, goods or services not being those of the Complainant but including ice cream related products; and the fact that the field of the advertising on the website operating under the disputed domain name has included advertising offering the disputed domain name itself for sale. The Respondent has tended no evidence to rebut this prima facie position.
The Panel therefore finds that the Complainant has established the second element of paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith
The strength of the likelihood of confusion in this case, the evident commercial intent of the web site operated under the disputed domain name, the fact that the Respondent has apparently both attempted to sell the disputed domain name and also to conceal its identity, all these support a finding of bad faith in the registration or continued use of the disputed domain name.
The Panel therefore finds that the Complainant has established the third element of paragraph 4(a) of the Policy. 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.
Michael J. Spence
Sole Panelist
Dated: April 19, 2011
Full & Egal Universal Law Academy