The Complainant is Trader Joe’s Company, of Monrovia, California, United States of America, represented by O’Melveny & Myers, LLP, United States of America.
The Respondent is Upay David, Dejava of Semarang, Jawa Tengah, Indonesia. 2. The Domain Name and Registrar
The disputed domain name is registered with Tucows Inc. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 12, 2015. On December 14, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 14, 2015 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on December 16, 2015. In accordance with the Rules, paragraph 5, the due date for Response was January 5, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 7, 2016.
The Center appointed Gunnar Karnell as the sole panelist in this matter on January 18, 2016. 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 disputed domain name was created on August 26, 2015.
The Complainant, founded in 1958, continuously operates under the name TRADER JOE’S since 1967. As of October 30, 2015, it operates nearly 450 retail stores and the name is used with numerous food and beverage products. The Complainant holds 91 separate trademark registrations worldwide for the mark TRADER JOE’S dating back to 1986 and an additional 6 registrations for marks containing the words TRADER JOE’S. 5. Parties’ Contentions A. Complainant
In addition to the trademark registrations mentioned above, the trademark has become a distinctive identifier associated exclusively with the Complainant’s services so as also to have established exclusive common law rights for the Complainant to its trademark.
The disputed domain name only differs from the trademark TRADER JOE’S by the generic term “junkie”, being insufficient to dispel the confusing similarity that results from using the trademark in the disputed domain name.
The Respondent has no rights to the trademark TRADER JOE’S or an interest in the disputed domain name beyond a commercial interest in misleadingly diverting consumers to generate revenue. The Respondent has not been licensed or otherwise authorized by the Complainant to use its trademark in any form, nor is the Respondent known by the name “Trader Joes Junkie” or any variation thereof. There is no evidence that the Respondent has used or intends to use the disputed domain name or any name corresponding thereto in connection with a bona fide offering of goods or services. Instead, the Complainant contends that the disputed domain name resolves to a website titled “Auto Insurance Automotive” that displays only pay-per-click links and banner advertisements making the Respondent commercially profiting from the click-through fees.
The disputed domain name was registered and is being used in bad faith. The Respondent has intentionally created a likelihood of confusion with the Complainant’s trademark so as to attract Internet users for commercial gain, deliberately confusing consumers by falsely suggesting an association with the Complainant and Trader Joe’s related content. At the registration and further use of the disputed domain name the Respondent must be presumed clearly to have had constructive if not actual knowledge of the Complainant’s rights in its trademark TRADER JOE’S, its reputation and goodwill. Also, the Respondent has failed to reply to a cease and desist letter, sent to the Respondent by the Complainant on October 16, 2015, demanding compliance with the UDRP and other applicable laws.
The Complainant requests that the disputed domain name be transferred to the Complainant. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
The factual foundation of the Complainant’s contentions, as presented by the Complainant, while supporting its non-contradicted request for transfer of the disputed domain name by written evidence and ample reference to earlier UDRP case decisions, leads the Panel to the following conclusions: A. Identical or Confusingly Similar
The Panel finds that notwithstanding the differences between the Complainant’s trademarks TRADER JOE’S and the disputed domain name, the latter is confusingly similar to the registered trademarks TRADER JOE’S in which the Complainant has rights. All registrations referred to by the Complainant took effect well before the registration of the disputed domain name.
The Panel finds that the Complainant has made out the first limb of the policy. B. Rights or Legitimate Interests
The Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in respect of the disputed domain name and there has been no rebuttal by the Respondent. Nothing in the record gives reason to believe that the Respondent has or had any rights or legitimate interests in respect of the disputed domain name.
The Panel finds that the Complainant has made out the second limb of the Policy in that the Respondent has no rights or legitimate interests in respect of the disputed domain name. C. Registered and Used in Bad Faith
The Panel finds no indication on the record that might impair the Complainant’s assertions regarding the facts leading up to its conclusions that the disputed domain name has been registered and used in bad faith. The Complainant has provided evidence that the disputed domain name resolved to a website hosting various sponsored links, among other things, falling under paragraph 4(b)(iv) of the Policy.
The Panel therefore finds that the Complainant has made out the third limb of the Policy and that the Respondent has registered and used the disputed domain name in bad faith. 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.
Gunnar Karnell
Sole Panelist
Date: January 21, 2016
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