The Complainant is Kraft Heinz Foods Company of Chicago, Illinois, United States of America (“USA” or “United States"), internally represented.
The Respondent is Whois Agent, Whois Privacy Protection Service, Inc of Kirkland, Washington, USA / Arlene Velarde of North Yok, Canada. 2. The Domain Name and Registrar
The disputed domain name is registered with eNom, Inc. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 26, 2018. On March 26, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 26, 2018, 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 April 3, 2018, 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 the same day.
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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on April 9, 2018. In accordance with the Rules, paragraph 5, the due date for Response was April 29, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 30, 2018.
The Center appointed Tuukka Airaksinen as the sole panelist in this matter on May 7, 2018. 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 is one of the largest food and beverage companies in the world. It is the owner of the trademarks KRAFT and HEINZ, registered around the world. The trademark HEINZ was registered in the United States on April 23, 1907 under number 62182 and the mark KRAFT on January 29, 1952 under number 554187.
The disputed domain name was registered on March 12, 2018 and resolves to an inactive website. 5. Parties’ Contentions A. Complainant
The disputed domain name contains the Complainant’s trademarks KRAFT and HEINZ in their entirety. The only difference is the addition of the word “corporation”.
The Complainant has not authorized or otherwise allowed the Respondent to use the Complainant’s trademarks or register the disputed domain name. The Respondent is not making legitimate noncommercial or fair use of the disputed domain name. The Respondent has not been commonly known by the disputed domain name and has not acquired any trademark rights related to the disputed domain name.
The Complainant’s trademarks are widely known and registered worldwide and the Respondent must have been aware of them when registering the disputed domain name, which is being used for a phishing expedition. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
In order to obtain the transfer of a domain name, a complainant must prove the three elements of paragraph 4(a) of the Policy, regardless of whether the respondent files a response to the complaint. The first element is that the domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights. The second element a complainant must prove is that the respondent has no rights or legitimate interests in respect of the domain name. The third element a complainant must establish is that the domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
Paragraph 4(a)(i) of the Policy requires that the Complainant establishes that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights. Consequently, the Complainant must prove that it has rights to a trademark, and that the disputed domain name is identical or confusingly similar to this trademark.
The disputed domain name includes the Complainant’s trademarks KRAFT and HEINZ in their entirety, combined with the descriptive word “corporation”.
This addition is not sufficient to remove the confusing similarity of the disputed domain name with the Complainant’s trademark. See Section 1.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”)
Accordingly, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s respective trademark and hence the first element of the Policy has been fulfilled. B. Rights or Legitimate Interests
Paragraph 4(a)(ii) of the Policy requires that the Complainant establish that the Respondent has no rights or legitimate interests to the disputed domain name.
The consensus view among UDRP panels is that once a complainant has made a prima facie showing indicating the absence of the respondent’s rights or legitimate interests in a disputed domain name the burden of production shifts to the respondent to come forward with evidence of such rights or legitimate interests. If the respondent fails to do so, the complainant is deemed to have satisfied the second element of the Policy. See, e.g., Document Technologies, Inc. v. International Electronic Communications Inc.,WIPO Case No. D2000-0270 and section 2.1 of the WIPO Overview 3.0.
The Complainant has credibly submitted that the Respondent is not a licensee of the Complainant, nor has been otherwise allowed by the Complainant to use the Complainant’s trademark in a domain name or otherwise. The Complainant has also credibly submitted that the Respondent has no rights or legitimate interests to the disputed domain name.
Accordingly, the Panel finds that the Complainant has made a prima facie case that has not been rebutted by the Respondent. In light of the Panel’s findings below, the Panel finds that there are no other circumstances which provide the Respondent with any rights or legitimate interests in the disputed domain name. Therefore, the Panel finds that the second element of the Policy is fulfilled. C. Registered and Used in Bad Faith
Paragraph 4(a)(iii) of the Policy requires that the Complainant establishes that the disputed domain name has been registered and is being used in bad faith. Paragraph 4(b) of the Policy provides that 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 [the respondent has] registered or has 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 [the respondent’s] documented out-of-pocket costs directly related to the domain name; or
(ii) [the respondent has] 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 [the respondent has] engaged in a pattern of such conduct; or
(iii) [the respondent has] registered the domain name primarily for the purpose of disrupting the business or competitor; or
(iv) by using the domain name, [the respondent has] intentionally attempted to attract, for commercial gain, Internet users to [the respondent’s] website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of [the respondent’s] website or location or of a product or service on [the respondent’s] website or location.”
The Panel finds that the Complainant’s trademarks KRAFT and HEINZ are well-known worldwide. It is therefore inconceivable that the Respondent would not have been aware of the Complainant’s trademarks when registering the disputed domain name.
The Complainant has shown that the disputed domain name has been used to pretend its user as being the Complainant, or at least associated with the Complainant. The Respondent has solicited potential employees by approaching them under the disguise of the disputed domain name and used the name of an actual employee of the Complainant. The purpose of these solicitations has probably been to gather information from Internet users for commercial gain.
The Panel finds that the disputed domain name has been used to deliberately create confusion with the Complainant’s trademark for commercial gain. Hence the Panel finds that the disputed domain name was registered and is being used in bad faith. Therefore, the Panel finds that the third element of the Policy is fulfilled. 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.
Tuukka Airaksinen
Sole Panelist
Date: May 20, 2018
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