The Complainant is Kraft Heinz Foods Company, Chicago, Illinois, United States of America (“Unites States”), represented by Jennifer Woods, Esq., United States.
The Respondent is Steve Co, Stave Co Ltd, Adana, Turkey. 2. The Domain Name and Registrar
The disputed domain name is registered with PDR Ltd. d/b/a PublicDomainR (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 15, 2018. On June 15, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 16, 2018, 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 June 20, 2018. In accordance with the Rules, paragraph 5, the due date for Response was July 10, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 13, 2018.
The Center appointed Andrea Dawson as the sole panelist in this matter on July 23, 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 and a globally trusted producer of foods. The Complainant provides nutritional foods for all eating occasions whether at home, in restaurants or on the go.
The company’s iconic brands include, among many more Kraft and Heinz. The Complainant, through its affiliated companies, owns trademark registrations around the world for the trademarks KRAFT and HEINZ. Copies of some of Complainant’s United States trademark registration certificates are provided in the annexes to the Complaint. The Complainant also asserts common law trademark rights in the combined “KRAFT HEINZ.”
The disputed domain name was registered on May 2, 2018.
Per the evidence provided by the Complainant the disputed domain name does not resolve to an active website, however, the Respondent was actively using the disputed domain name to communicate with third parties via email communications. 5. Parties’ Contentions A. Complainant
The Complainant asserts that its KRAFT and HEINZ trademarks enjoy a worldwide reputation, and that it owns numerous trademark registrations.
The Complainant further asserts that the disputed domain name incorporates both the KRAFT and HEINZ trademarks. The only difference between the disputed domain name and the Complainant’s domain name is the generic Top-Level Domain (“gTLD”), i.e., the disputed domain name has the suffix “.top” instead of “.com”. The KRAFT and HEINZ trademarks remain the dominant or principal component of the disputed domain name.
The Complainant also asserts that the Respondent does not use the disputed domain name in connection with a bona fide offering of goods or services. The Respondent has no website to advertise any goods or services of his or her own. 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 adds that the Respondent does not send email messages under its actual name, choosing instead to steal the identity of an employee of the Complainant.
The Complainant indicates that the Respondent was aware of the Complainant’s rights with respect to the KRAFT and HEINZ trademarks when registering the disputed domain name.
The Complainant furthers asserts that there is no conceivable legitimate reason for the Respondent to register the disputed domain name.
The Complainant finally asserts that the correspondence provided as evidence between the Respondent and a third party, establishes that the Respondent used the disputed domain name for the sole purpose of defrauding unsuspecting vendors of the Complainant by diverting their business and cash for commercial gain. The Respondent is doing so by (a) creating a likelihood of confusion with the Complainant’s mark as to the source of Complainant’s products; and (b) stealing the identity of the Complainant’s employee. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
The Complainant has established rights to both the KRAFT and HEINZ trademarks. The disputed domain name, which combines the Complainant’s trademarks with the term “company” is confusingly similar to the registered trademarks of the Complainant.
Therefore, the Panel finds the disputed domain name to be confusingly similar to the trademarks KRAFT and HEINZ in which the Complainant has rights. Accordingly, the Panel finds that the Complainant has satisfied paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
Under paragraph 4(a)(ii) of the Policy, the Complainant must prove that the Respondent has no rights or legitimate interests in the disputed domain name.
Prior UDRP panels have established that once a complainant makes out a prima facie case that a respondent has no rights or legitimate interests in a domain name, the burden of production shifts to the respondent to come forward with evidence to support a finding that he does have rights or legitimate interests in the domain name.
The Panel finds that the Complainant has made out a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name considering: a) the lack of authorization from the Complainant for the Respondent to use its KRAFT and HEINZ trademarks, or to register any domain name incorporating said marks; b) the lack of evidence that the Respondent has made any demonstrable preparations to use the disputed domain name in connection with a bona fide offering of goods or services; and c) that the Respondent is not making a legitimate noncommercial or fair use of the disputed domain name.
Moreover, the Respondent has not come forward to assert any rights or legitimate interests he may have in the disputed domain name, and the record is devoid of any indication of such rights or legitimate interests.
Furthermore, the evidence provided by the Complainant regarding the use that the Respondent has given to the disputed domain name, by engaging in correspondence with the vendors of the Complainant by impersonating an employee of the Complainant, involving also identity theft, is clear proof that it is engaged in a phishing scheme, a practice intended to defraud vendors by providing payment details that do not pertain to the Complainant.
Consequently, the Panel finds that the condition of paragraph 4(a)(ii) of the Policy has been satisfied. C. Registered and Used in Bad Faith
Under paragraph 4(a)(iii) of the Policy, the Complainant must prove that the disputed domain name was registered and is being used in bad faith. Paragraph 4(b) of the Policy sets out certain circumstances which, in particular but without limitation, if found by the Panel to be present, shall be evidence of both registration and use of the disputed domain name in bad faith.
The Panel finds that the Complainant has submitted arguments, unchallenged by the Respondent, that the Respondent has registered the disputed domain name with knowledge of the Complainant’s rights in the Complainant’s trademarks and that the Respondent’s bad faith is evidenced by several circumstances indicating that the Respondent must have been aware of the Complainant’s trademarks at the time of the registration of the disputed domain name.
The Panel agrees with the Complainant’s opinion that the only difference between disputed domain name and the Complainant’s domain name is the gTLD, the disputed domain name ends in the suffix “.top” instead of the suffix “.com”. The KRAFT and HEINZ trademarks remain the dominant or principal component of the disputed domain name.
Furthermore, the Panel finds that it is reasonable to conclude that the Respondent had knowledge of the Complainant’s existence and the services it provided. Consequently, it is fair to conclude that the Respondent must have had the Complainant’s trademarks in mind when registering the disputed domain name, especially taking into consideration that the Complainant’s trademarks KRAFT and HEINZ are widely known.
Moreover, noting the assertions and documents provided by the Complainant, the Panel considers, on the balance of probabilities, that the Respondent’s real intention was to try to give the impression of being the Complainant and to take advantage of the Complainant’s vendors by impersonating one of its employees so that payment of products be deposited in an account owned by the Respondent, and not the Complainant, by means of a phishing scheme.
Finally, the Panel notes that the disputed domain name does not resolve to an active website, though it has actively used it via email correspondence. In view of the circumstances of this case, the Panel finds that the Respondent’s passive holding of the disputed domain name does not prevent a finding of bad faith use.
For the above-cited reasons, the Panel finds that the disputed domain name was registered and is being used in bad faith. Therefore, the requirements of paragraph 4(a)(iii) of the Policy are also fulfilled in this case. 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.
Andrea Dawson
Sole Panelist
Date: August 6, 2018
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