Complainant is Leite’s Culinaria, Inc. of New York, New York, United States of America, represented by Davis & Leonard LLP, United States of America.
Respondent is Gary Cieara of Lakeland, Florida, United States of America. 2. The Domain Name and Registrar
The disputed domain name is registered with GoD, LLC (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 11, 2014. On January 13, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 13, 2014, the Registrar 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 January 16, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was February 5, 2014. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on February 6, 3014.
The Center appointed Sandra A. Sellers as the sole panelist in this matter on February 11, 2014. 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 website features information regarding recipes, cooking and entertaining at the domain name . For over thirteen years Complainant has attracted a high volume of web users seeking cooking and recipe information. Complainant registered this domain name on February 20, 1999.
Complainant holds a US Registration for the LEITE’S CULINARIA mark in connection with “providing a website featuring culinary arts.”
On April 17, 2013, Respondent registered the disputed domain name. About one month later, Complainant discovered that an exact copy of Complainant’s web page from its was being displayed at the disputed domain name. Complainant’s counsel sent Respondent a cease and desist letter on May 28, 2013. Respondent has not replied. In September 2013, the website associated with the disputed domain name was removed and replaced with a nearly blank page that states “It works! This is the default web page for this server. The web server software is running but no content has been added, yet.” 5. Parties’ Contentions A. Complainant
Complainant asserts that it has rights in the LEITE’S CULINARIA trademark. It contends that the disputed domain name is confusingly similar to Complainant’s mark because it consists of Complainant’s LEITE’S CULINARIA mark in its entirety, and that there is no real difference between Complainant’s mark and the disputed domain name. Complainant further alleges that Respondent has no rights or legitimate interests in the disputed domain name, and that it registered and uses the disputed domain name in bad faith. B. Respondent
Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings
Paragraph 4(a) of the Policy provides that in order to divest Respondent of the disputed domain name, Complainant must demonstrate 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. A. Identical or confusingly similar
The disputed domain name is confusingly similar to Complainant’s LEITE’S CULINARIA mark. It contains Complainant’s LEITE’S CULINARIA mark in its entirety. The main difference between Complainant’s mark and the disputed domain name is the lack of punctuation. It is not possible to include punctuation marks (except for the hyphen) in domain names. Punctuation marks typically do not significantly affect the appearance of words. Therefore, in comparing a disputed domain name with a complainant’s trademark, previous panels have ignored punctuation marks in the trademark. L’Oreal, Lancôme Parfums et Beaute & Cie v. InfoChina ltd,WIPO Case No. D2008-0981. Moreover, the Panel notes that the Top-Level Domain suffix “.info” can be disregarded under the confusing similarity test.
Accordingly, the Panel finds that Complainant has rights in the LEITE’S CULINARIA mark and that the disputed domain name is confusingly similar to Complainant’s mark. Complainant has established the first element of paragraph 4(a) of the Policy. B. Rights or Legitimate Interests
Because it is generally difficult for a complainant to prove the fact that a respondent does not have any rights or legitimate interests in a disputed domain name, previous UDRP panels have found it sufficient for a complainant to make a prima facie showing of its assertion where there has been no response.
Complainant has exclusive rights in the LEITE’S CULINARIA mark and has not authorized Respondent to register and use the disputed domain name . Respondent is not affiliated with or related to Complainant, nor is Respondent licensed or authorized to use the LEITE’S CULINARIA mark. Respondent has made no showing that it has any rights or legitimate interests in using the disputed domain name. On the evidence before the Panel, Respondent does not appear to make any legitimate noncommercial or fair use of the disputed domain name.
The Panel is satisfied that Complainant has made a prima facie showing of Respondent’s lack of rights or legitimate interests in the disputed domain name.
Respondent is in default, and has not provided any evidence in its own favor.
The Panel finds that the evidence in the record is sufficient to establish that Respondent has no rights or legitimate interests in the disputed domain name, and thus Complainant meets the second criterion of paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy states that:
“for the purposes of paragraph 4(a)(iii), the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:
(i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or
(ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your website or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location.” Registration in Bad Faith
It is difficult to conceive that Respondent did not know of Complainant’s mark and services when Respondent registered the disputed domain name. As set forth above, Complainant has offered cooking information and recipes to web users under the LEITE’S CULINARIA mark since 1999. Its services are covered by a US trademark registration. All of this occurred before Respondent registered on April 17, 2013. Further, the disputed domain name reverted to a web page that was an exact copy of Complainant’s web site. Based on these facts, this Panel infers that Respondent was aware or must have been aware of Complainant’s mark when Respondent registered the disputed domain name, and therefore registered it in bad faith. See, e.g., Jupiters Limited v. Aaron Hall,WIPO Case No. D2000-0574, in which the panel found it “inevitable that [r]espondent registered the domain names in full knowledge of [c]omplainant’s rights and interests”. Additionally, under 15 USC §1072, registration of Complainant’s mark constitutes constructive notice of the mark. Respondent therefore had legal, if not actual, notice of Complainant’s mark prior to registering the disputed domain name. Use in Bad Faith
Complainant sent Respondent a cease and desist letter on May 28, 2013. Respondent never replied. A failure of a respondent to respond to a cease and desist letter has been considered relevant in finding of bad faith (see News Group Newspapers Limited and News Network Limited v. Momm Amed Ia,WIPO Case No. D2000-1623; Nike, Inc. v. Azumano Travel,WIPO Case No. D2000-1598; and America Online, Inc. v. Antonio R. Diaz,WIPO Case No. D2000-1460).
Moreover, Respondent copied Complainant’s entire web page, including Complainant’s mark, and displayed it on the page to which the disputed domain name reverted. This is incontrovertible evidence for this Panel that Respondent intended to disrupt Complainant’s business and to divert web traffic intended for Complainant by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s web site or location or of a product or service on Respondent’s web site or location. See Telcel, C.A. v. jerm and Jhonattan Ramirez, WIPO Case No. D2002-0309. The Panel finds that Respondent has used the disputed domain in bad faith under paragraph 4(b)(iv) of the Policy. 7. Decision
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name be transferred to the Complainant.
Sandra A. Sellers
Sole Panelist
Date: February 25, 2014
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