Complainant is Kraft Heinz Foods Company, United States of America, internally represented.
Respondent is Contact Privacy Inc. Customer 0153816156, Canada / Dion Dudley, Grownmark, United States of America. 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 April 29, 2019. On April 30, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On the same day, 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 Complainant on May 1, 2019, providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant did not file an amendment to the Complaint.
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 Respondent of the Complaint. Because the Registrar had also identified Dion Dudley, Grownmark, United States of America, as the registrant of the disputed domain name, (hereinafter the “Identified Registrant”) the Center, out of an abundance of caution and to insure that any decision concerning the disputed domain name was made under proceedings which provided notice and the opportunity to be heard to the Identified Registrant, the Center also copied the Identified Registrant on the notification of the Complaint and on all subsequent notifications issued in this proceedings. Transmissions to the Identified Registrant were sent to the email address provided for the Identified Registrant by the Registrar. The proceedings commenced on June 5, 2019. In accordance with the Rules, paragraph 5, the due date for Response was June 25, 2019. No response was submitted. Accordingly, the Center notified Respondent’s default on June 26, 2019.
The Center appointed M. Scott Donahey as the sole panelist in this matter on July 1, 2019. 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 is the fifth-largest food and beverage company in the world. Complainant’s brands include KRAFT, HEINZ, CAPRI-SUN, JELL-O, KOOL-AID, ORE-IDA, and VELVEETA, just to name a few. Complainant or its predecessors has held United States of America registered trademarks in the mark KRAFT since at least as early as 1952 and in the mark HEINZ since at least as early as 1907 (Complaint, Annex 4). Complainant’s brands and products are known throughout the world.
Complainant registered the domain name on March 25, 2015 and the domain name on March 25, 2015 (Complaint, Annex 2).
Respondent registered the disputed domain name on January 30, 2019 (Complaint, Annex 3). Respondent has used the disputed domain name to resolve to a web site which displays an “under construction” notice. The web site has no reference to any goods or services which are to be available to the user to purchase or otherwise use (Complaint, Annex 5). 5. Parties’ Contentions A. Complainant
Complainant contends that the disputed domain name is confusingly similar to Complainant’s KRAFT and HEINZ trademarks, in that the disputed domain name incorporates both marks with an additional “s” inserted between the KRAFT and HEINZ marks. Complainant alleges that Respondent is not authorized to use Complainant’s marks in any way and that Respondent is not affiliated in any way with Complainant. Finally, Complainant argues that Respondent has registered and is using the disputed domain name in bad faith, in that Respondent is using the disputed domain name to send emails to Complainant’s customers and vendors to defraud them into thinking they are making payments to or purchases from Complainant. B. Respondent
Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings
Paragraph 15(a) of the Rules instructs the Panel as to the principles the Panel is to use in determining the dispute:
“A Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.”
Paragraph 4(a) of the Policy directs that the complainant must prove each of the following:
(i) that the domain name registered by the respondent is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and,
(ii) that the respondent has no rights or legitimate interests in respect of the domain name; and,
(iii) that the domain name has been registered and is being used in bad faith.” A. Identical or Confusingly Similar
The disputed domain name consists of the combination of Complainant’s longstanding marks KRAFT and HEINZ with an “s” inserted between the two, followed by the generic Top-Level Domain (“gTLD”) “.com”. The Panel finds that the disputed domain name is similar to Complainant’s marks which have been in use for decades. B. Rights or Legitimate Interests
While the overall burden of proof in UDRP proceedings is on the complainant, UDRP panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the often impossible task of “proving a negative”, requiring information that is often primarily within the knowledge or control of the respondent. As such, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 2.1.
In the present case, Complainant alleges that Respondent has no rights or legitimate interests in respect of the disputed domain name and Respondent has failed to assert any such rights. Accordingly, the Panel finds that Respondent has no rights or legitimate interests in respect of the disputed domain name. C. Registered and Used in Bad Faith
Respondent has used the disputed domain name by sending emails to parties using the actual names of Complainant’s contractors and employees as the purported originators of such communications, and seeking to defraud the recipients into sending money to Respondent believing that in fact the money was going to Complainant (Complaint, Annex 1). The disputed domain name itself is also used to resolve to a website which purports to be “under construction” (Complaint, Annex 5). Accordingly, the Panel finds that the disputed domain name has been registered and is being used 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.
M. Scott Donahey
Sole Panelist
Date: July 2, 2019
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