Complainant is Hunt Family Properties, LLC of Nashville, Tennessee, United States of America (“United States”), represented by Waller Lansden Dortch & Davis, LLP, United States.
Respondent is Larry Lee, Phoenix Success Systems of Blaine, Washington, United States. 2. The Domain Name and Registrar
The disputed domain name, , is registered with GoD, LLC (“Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (“Center”) on August 17, 2018. On August 20, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 21, 2018, the Registrar transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing contact and other information.
The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (“Policy”), the Rules for the Policy (“Rules”), and the WIPO Supplemental Rules for the Policy (“Supplemental Rules”). In accordance with the Rules, paragraphs 2 and 4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on August 28, 2018. In accordance with the Rules, paragraph 5, the due date for Response was September 17, 2018.
On August 30, 2018, and September 7, 2018, the Center received email communications from Respondent; the first stated that the domain would be disabled within 10 days and the second stated that the disputed domain name had been “deactivated” and offering to transfer it to Complainant. On September 19, 2018, the Center informed the Parties that it would commence the panel appointment process.
The Center appointed Debra J. Stanek as the sole panelist in this matter on September 26, 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
Complainant makes and distributes pizza in the United States. Complainant owns several United States federal trademark registrations for HUNT BROTHERS and HUNT BROTHERS PIZZA marks for pizza, wholesale distribution services featuring pizza, and other foods. The earliest registration for HUNT BROTHERS (United States Reg. No. 2897863) issued October 26, 2004 and the earliest registration for a HUNT BROTHERS PIZZA design mark (United States Reg. No. 2907057) issued November 30, 2004. Complainant also owns the domain name , from which it has operated its website since 2002 and owns other similar “Hunt Brothers” domain names.
About May 14, 2018, Respondent registered , currently used in connection with a website that is not active. Currently, it contains a link to Complainant’s website and offers to transfer the domain name to Complainant. Prior to that time, the website displayed a HUNT BROTHERS PIZZA design mark and offered a “fan club” and a “membership” offering free pizza and book to visitors who registered by providing their name, address, email address, and other information. 5. Parties’ Contentions A. Complainant A. Identical or Confusingly Similar
Complainant has established common law trademark rights in HUNT BROTHERS PIZZA since 2004. In addition, Complainant owns United States trademark registrations for HUNT BROTHERS and HUNT BROTHERS PIZZA as well as a number of domain names that include variations on the terms “hunt,” “brothers”, and “pizza.”
The disputed domain name is identical or confusingly similar to Complainant’s mark. B. Rights or Legitimate Interests
Complainant has not authorized Respondent to use its marks. In light of Complainant’s long-standing trademark rights, Respondent could not have any legitimate rights or interests in the disputed domain name.
Complainant’s use and registration of its HUNT BROTHERS marks long predate Respondent’s registration of the disputed domain name.
Respondent’s use of the disputed domain name in order to obtain personally-identifiable information from visitors is not a noncommercial or fair use. Respondent is using the disputed domain name as part of a phishing scheme. In connection with that scheme, it has copied material from Complainant’s website.
Respondent cannot show that it is commonly known by the disputed domain name. C. Registered and Used in Bad Faith
Respondent is using the disputed domain name to attract visitors to its website for financial gain by creating a likelihood of confusion. Here, Respondent registered and is using the disputed domain name with a website that features Complainant’s marks and copies Complainant’s content, mirroring Complainant’s website in order to obtain personal information from visitors. B. Respondent
Respondent did not submit a response to the Complaint. However, in the second of its two email messages it stated:
“We want to transfer the domain for free to Hunt Brothers Pizza.
The reason we created the website was to introduce our services to them. Since they aren’t interested, we won’t be using the domain anymore. Instead of just letting it expire next May, we want to give it to them for free”. 6. Discussion and Findings
To prevail, a complainant must prove, as to a disputed domain name, that: (a) it is identical or confusingly similar to a mark in which the complainant has rights, (b) respondent has no rights or legitimate interests in respect to it, and (c) it has been registered and is being used in bad faith. Policy, paragraph 4(a).
The Policy sets out examples of circumstances that may evidence a respondent’s rights or legitimate interests in a domain name, see Policy, paragraph 4(c), as well as circumstances that may evidence a respondent’s bad faith registration and use, see Policy, paragraph 4(b). Not responding to a complaint does not automatically result in a finding for the complainant. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 4.3. A complainant continues to have the burden of establishing each element. The Panel may, however, draw such inferences from Respondent’s default as appropriate. See Rules, paragraph 14(b). A. Identical or Confusingly Similar
Complainant has established its rights in the marks through its United States trademark registrations and the disputed domain name (disregarding the top-level domain) is identical to Complainant’s HUNT BROTHERS PIZZA mark.
Accordingly, the Panel finds that the disputed domain name is identical or confusingly similar to a mark in which Complainant has rights. B. Rights or Legitimate Interests
The Panel shares the consensus view that a complainant may establish that a respondent has no rights or legitimate interests in respect of a domain name by making a prima facie showing. See WIPO Overview 3.0, section 2.1 (once complainant makes a prima facie case, burden of production to show rights or legitimate interests in the domain name shifts to respondent). The Panel finds that Complainant has made a prima facie showing under this element.
There is no indication Respondent is commonly known by the disputed domain name; Respondent is identified as Larry Lee, Phoenix Success Systems. The contention in Respondent’s email communication to the Center that it created the website “to introduce” its services to Complainant is belied by the replication of Complainant’s mark and apparent mechanism for collecting personally-identifiable information from visitors.
Respondent’s use is not in connection with a bona fide offering and is neither a legitimate noncommercial or fair use of the disputed domain name. Indeed, it seems clear that the purpose was to mislead visitors into providing information in the belief that the information was being provided to Complainant.
The Panel concludes that Complainant has established that Respondent lacks any rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith
Complainant must establish that the disputed domain name was registered and is being used in bad faith.
Complainant’s rights in its HUNT BROTHERS and HUNT BROTHERS PIZZA marks, which appear to be quite well-known, predate registration of the disputed domain name. Respondent’s communication acknowledges that it knew of Complainant’s marks when it registered and began using the disputed domain name. The Panel does not credit Respondent’s assertion that its purpose in creating a site that used Complainant’s mark to collect personally-identifiable information from visitors was to “introduce” its services to Complainant.
These facts establish that Respondent 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 Complainant.
Debra J. Stanek
Sole Panelist
Date: September 29, 2018
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