The Complainant is Cinzia Cozzolino, Australia, represented by Mills Oakley Law Firm, Australia.
The Respondents are Helen Hall, Hushup and Hustle LLC, United States of America (“United States” or “USA”) / Blender Bombs, LLC, United States / Hungry for Hustle LLC, United States. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 7, 2019. On September 9, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On September 9, 2019, 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 September 25, 2019. In accordance with the Rules, paragraph 5, the due date for Response was October 15, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 17, 2019. The Center appointed Karen Fong as the sole panelist in this matter on October 28, 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 The Complainant is a nutritionist based in Australia. In around 2011, she was confronted with the problem of one of her daughters lacking an interest in food raising concerns about the potential for nutritional deficiencies. Using her education and experience as a nutritionist and carrying out further research, the Complainant conceived of the idea of combining nuts, seeds and superfood ingredients to make smoothie boosters. The smoothie boosters enabled her daughter to enjoy a quick but healthy breakfast before school. After this success at home, the Complainant began to make and sell her smoothie boosters in local areas. Since October 2014, these smoothie boosters and related products were sold under the trade mark SMOOTHIE BOMBS. The earliest SMOOTHIE BOMBS trade mark registration submitted in evidence is Australian Trade Mark Registration No. 1645767 in Class 30, with a priority date of September 8, 2014 (the “Trade Mark”). The Complainant obtained an International Registration for SMOOTHIE BOMBS under International Registration No. 1401630 designating the European Union, the USA and the Republic of Korea with the registration date of February 13, 2018. The Complainant first sold its products bearing the Trade Mark via traditional marketing channels like retail stores, and promoting the products via social media and magazines. In April 2015, the Complainant established and registered the company Nutrition Darling Pty Ltd to run the Smoothie Bombs business and on April 4, 2015, the Complainant registered the domain name Since 2015, the Complainant has generated more than 80% of her revenue from selling the products bearing the Trade Mark online. The business has substantially expanded. In fact since 2014, the Complainant’s sales of SMOOTHIE BOMBS products have increased by 1,025%. The Complainant’s smoothie boosters sold under the Trade Mark are now manufactured under licence and sold in several countries including the USA. The Trade Mark is regularly and consistently used on social media platforms, such as Facebook, Instagram, Youtube and Twitter to advertise, promote and sell the Complainant’s products. Given the product is a nutritional food item, the Complainant is particularly concerned to ensure quality control of the product she sells. The Domain Name was registered on April 16, 2015. According to the WhoIs information released by the Registrar the registrant of the Domain Name is Helen Hall of Hushup and Hustle. The Domain Name is automatically redirected to “www.blenderbombs.com” (the “Blender Bombs Website”). The products sold under the BLENDER BOMBS trade mark are in the same product category as the Complainant’s products, namely smoothie boosters, cereals and related products. In the “About/FAQ” section of the Blender Bombs Website, it states that it is owned by an entity called Blender Bombs, an affiliated company to Hushup×Hustle. Helen is said to be the founder and sole director of both Blender Bombs and Hushup×Hustle. According to the Instagram account “@hushupandhustle” shown on the Blender Bombs Website, Helen’s full name is Helen Hall as confirmed by the Registrar’s verification information after the Complaint was filed. There are various BLENDER BOMBS trade mark applications/registrations on the database of the United States Patent and Trademark Office (“USPTO”) whose applicant/proprietor includes Helen Hall, Blender Bombs, LLC, and Hungry for Hustle LLC. Hush Up and Hustle, LLC also attempted to register the Complainant’s trade mark SMOOTHIE BOMBS when it filed an application on February 13, 2018 in the USPTO which coincidentally was the same date that the Complainant registered its International Registration. The Respondent’s application is marked abandoned on December 3, 2018. On May 21, 2016, the Complainant received an email from Ms. Moffa offering to sell the Domain Name but the message was marked as spam with phishing warnings, so the Complainant did not respond. On October 28, 2018, the Complainant received another spam email from Mr. Barbell also offering to sell the Domain Name. On July 4, 2019, the Complainant wrote to the Respondents to discontinue the use of the Domain Name. The Respondents did not respond. 5. Parties’ Contentions A. Complainant The Complainant contends that the Domain Name is confusingly similar to the Trade Mark, that the Respondents have no rights or legitimate interests with respect to the Domain Name, and that the Domain Name was registered and is being used in bad faith. The Complainant requests transfer of the Domain Name. B. Respondent The Respondents did not reply to the Complainant’s contentions. 6. Consolidation – Multiple Respondents Paragraph 4(f) of the Policy allows a panel to consolidate multiple disputes between parties at its sole discretion and paragraph 10(e) of the Rules empowers a panel to consolidate multiple domain name disputes in accordance with the Policy and Rules. Neither the Policy nor the Rules expressly provide for the consolidation of multiple respondents in a single administrative proceeding. In fact, paragraph 3(c) of the Rules provides that a complaint may relate to more than one domain name provided that the domain names are registered by the same domain name holder. The panel in Speedo Holdings B.V. v. Programmer, Miss Kathy Beckerson, John Smitt, Matthew Simmons,WIPO Case No. D2010-0281 reviewed the relevant UDRP decisions in relation to consolidation in multiple respondent’s cases and extracted the following general principles: 1. Consolidation of multiple registrants as respondents in a single administrative proceeding may in certain circumstances be appropriate under paragraphs 3(c) or 10(e) of the Rules provided the complainant can demonstrate that the disputed domain names or the websites to which they resolve are subject to common control, and the panel having regard to all of the relevant circumstances, determines that consolidation would be procedurally efficient and fair and equitable to all parties. 2. The administrative provider should act as a preliminary gatekeeper in such cases by determining whether or not such complaints fulfill the requisite criteria. Once a case is admitted on a prima facie basis, the respondent has the opportunity to make its submissions on the validity of the consolidation together with its substantive arguments. In the event that the panel makes a finding that the complaint has not satisfied the requisite criteria, the complainant is not precluded from filing the complaint against the individual named respondents. The Complainant has provided good evidence referred to above to substantiate its case that the Respondents are connected to each other and under the common control of Helen Hall. Accordingly, applying the principles to the facts in this case, the Panel finds that the Complainant has established more likely than not that the Domain Name is subject to common ownership or control to justify consolidation of the Complainant's claims against all the Respondents. The Panel further concludes in the circumstances of this case that consolidation would be fair and equitable to all parties and procedurally efficient, and therefore will allow the consolidation as requested by the Complainant pursuant to paragraph 10(e) of the Rules. The Respondents may therefore be referred to as “the Respondent”. 7. Discussion and Findings 7.1 General According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the Domain Name, the Complainant must prove each of the following, namely that: (i) The Domain Name is identical or confusingly similar to trade marks or service marks in which the Complainant has rights; and (ii) The Respondent has no rights or legitimate interests in respect of the Domain Name; and (iii) The Domain Name was registered and is being used in bad faith. 7.2 Substantive Analysis A. Identical or Confusingly Similar The Panel is satisfied that the Complainant has established that it has rights to the Trade Mark. The standing (or threshold) test for confusing similarity involves a reasoned but relatively straightforward comparison between the trade mark and the domain name to determine whether the domain name is confusingly similar to the trade mark. The test involves a side-by-side comparison of the domain name and the textual components of the relevant trade mark to assess whether the mark is recognizable within the domain name. In this case the Domain Name consists of the Trade Mark in its entirety. For the purposes of assessing identity or confusing similarity under paragraph 4(a)(i) of the Policy, it is permissible for the Panel to ignore the generic Top-Level Domain (“gTLD”) which in this case is “.com”. It is viewed as a standard registration requirement. The Panel finds that the Domain Name is identical or confusingly similar to trade marks in which the Complainant has rights and that the requirements of paragraph 4(a)(i) of the Policy therefore are fulfilled. B. Rights or Legitimate Interests Pursuant to paragraph 4(c) of the Policy, a respondent may establish rights to or legitimate interests in the domain name by demonstrating any of the following: (i) before any notice to it of the dispute, the respondent’s use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or (ii) the respondent has been commonly known by the domain name, even if it has acquired no trade mark or service mark rights; or (iii) the respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain, to misleadingly divert consumers. Although the Policy addresses ways in which a respondent may demonstrate rights or legitimate interests in a domain name, it is well established that, as it is put in section 2.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), that a complainant is required to make out a prima facie case that the respondent lacks rights or legitimate interests in the domain name. Once such prima facie case is made, the burden of production shifts to the respondent to come forward with appropriate allegations and evidence demonstrating rights or legitimate interests in the domain name. If the respondent does come forward with some evidence of relevant rights or legitimate interests, the panel weighs all the evidence, with the burden of proof always remaining on the complainant. The Complainant submits that the Respondent is not in any way connected or affiliated with the Complainant. The Respondent has not been authorized by the Complainant to make any use of the Trade Mark. The Respondent is not commonly known by the Domain Name. It appears that the Domain Name was not used at or around the time it was registered. It is not clear whether Ms. Moffa or Mr. Barbell are connected to the Respondent. The Registrar did not provide any information as to whether the Respondent was the registrant on the creation date of the Domain Name on April 16, 2015. The Respondent’s Blender Bombs business commenced some time in 2017. In any event, the Complainant had begun using the Trade Mark in 2014. Certainly by 2017, the Complainant’s reputation in the product category was well established. The Respondent cannot assert that it was using or had made demonstrable preparations to use the Domain Name in connection with a bona fide offering of goods or services. The using of a Domain Name bearing the Trade Mark of a competitor to be redirected to one’s own website cannot be considered a bona fide offering of goods or services. This has the hallmarks of a typical cybersquatting case. Moreover, the Domain Name being identical to the Complainant’s Trade Mark carries a high risk of implied affiliation with the Complainant. See section 2.5.1 of WIPO Overview 3.0. The Panel finds that the Complainant has made out a prima facie case, a case calling for an answer from the Respondent. The Respondent has not provided any reasons why it chose to register the Domain Name comprising a trade mark with which it has no connection. The Panel is unable to conceive of any basis upon which the Respondent could sensibly be said to have any rights or legitimate interests in respect of the Domain Name. The Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name. C. Registered and Used in Bad Faith To succeed under the Policy, the Complainant must show that the Domain Name has been both registered and used in bad faith. It is a double requirement. The Panel is satisfied that the Respondent must have been aware of the Complainant, its business and the Trade Mark when it registered or acquired the Domain Name. The combination of the words Smoothie and Bombs was invented by the Complainant. It is not a descriptive term for the products in question. It is implausible that the Respondent was unaware of the Complainant when it registered/acquired the Domain Name especially since the Domain Name consists of a trade mark which has an established reputation in the same product category as the Respondent. In the WIPO Overview 3.0, section 3.2.2, states as follows: “Noting the near instantaneous and global reach of the Internet and search engines, and particularly in circumstances where the complainant’s mark is widely known (including in its sector) or highly specific and a respondent cannot credibly claim to have been unaware of the mark (particularly in the case of domainers), panels have been prepared to infer that the respondent knew, or have found that the respondent should have known, that its registration would be identical or confusingly similar to a complainant’s mark. Further factors including the nature of the domain name, the chosen top-level domain, any use of the domain name, or any respondent pattern, may obviate a respondent’s claim not to have been aware of the complainant’s mark.” The fact that there is a clear absence of rights or legitimate interests is also a significant factor to consider (as stated in section 3.2.1 of WIPO Overview 3.0). In light of the above, the Panel finds that registration of the Domain Name is in bad faith. The Panel also concludes that the actual use of the Domain Name is also in bad faith. The use of the Trade Mark as the Domain Name which automatically redirects traffic to the Respondent’s own website is intended to capture Internet traffic from Internet users who are looking for the Complainant’s products. The reason why the Complainant became aware of the Domain Name was because she was alerted to this by one of her customers. The Complainant has submitted evidence of confusion on the part of customers who were redirected to the Respondent’s Blender Bombs Website when searching for the Complainant’s products. There is a clear intention on the part of the Respondent to attract Internet users for commercial gain by confusing and misleading Internet users into believing that the Website and the products sold on it were authorised or endorsed by the Complainant. The above is clearly bad faith under paragraph 4(b)(iv) of the Policy and the Panel concludes that the Respondent’s registration and use of the Domain Name are in bad faith. In light of the above, the Panel finds that registration and use of the Domain Name are in bad faith. 8. Decision For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name Karen Fong
Sole Panelist
Date: November 17, 2019
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