Complainant is Cobb-Vantress, Inc., United States of America (“United States”), represented by Loeb & Loeb, LLP, United States.
Respondent is Host Master, Transure Enterprise Ltd, 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 March 11, 2020. On March 12, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On March 13, 2020, 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 March 13, 2020, providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on March 18, 2020. 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 Respondent of the Complaint, and the proceedings commenced on March 20, 2020. In accordance with the Rules, paragraph 5, the due date for Response was April 9, 2020. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on April 14, 2020. The Center appointed Scott R. Austin as the sole panelist in this matter on April 16, 2020. 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 states in its Complaint, and provides evidence in the respective Annexes attached to its Complaint sufficient to support that: “Complainant is a subsidiary of Tyson Foods, Inc., one of the largest food production companies in the United States and throughout the world”; “Complainant is the world’s oldest pedigree broiler breeding company and is one of the world’s leading suppliers of broiler breeding stock with distribution into over 120 countries”; “Complainant has more than 3,500 employees at facilities and offices in the United States and around the world”; and, “Complainant is operating and has operated its business under the name “Cobb-Vantress” for decades.” Complainant owns a trademark registration for the COBB-VANTRESS trademark (the “COBB-VANTRESS Mark”) registered with the United States Patent and Trademark Office (“USPTO”) in connection with the marketing of its live animal products, United States Registration No. 1,967,870, issued April 16, 1996, and claiming a first use date of May 1, 1986. Complainant operates the following domain name reflecting its trademark in order to promote its services, The Disputed Domain Name Complainant contends, in relevant part, as follows. The Disputed Domain Name is identical or confusingly similar to a trademark or service mark in which Complainant has rights because: a) “Complainant owns a valid and incontestable United States federal trademark registration for COBB-VANTRESS, demonstrating Complainant’s rights in the COBB-VANTRESS [M]ark under Policy [paragraph] 4(a)(i)”; b) “Complainant has achieved significant goodwill and international fame in its COBB- VANTRESS [M]ark”, which has been in use “since 1986”; c) “The [Disputed Domain Name] incorporates Complainant’s COBB-VANTRESS [M]ark in full, changing the federally registered COBB-VANTRESS [M]ark only by removing the hyphen between the two words ‘[cobb]’ and ‘[vantress]’ and adding the generic top-level domain (‘gTLD’) ‘.com’”. Respondent has no rights or legitimate interests in the Disputed Domain Name because: a) “Without Complainant’s authorization or consent, Respondent registered the [Disputed Domain Name]”; b) “Respondent is not commonly known by the [Disputed Domain Name], has not used or prepared to use the [Disputed Domain Name] in connection with a [bona fide] offering of goods or services, has not been authorized, licensed, or otherwise permitted by Complainant to register and/or use the [Disputed Domain Name]”; c) “[T]he [Disputed Domain Name] resolves to a website that contains content links to unaffiliated third party websites for services in competition with […] Complainant.”; d) “[C]onsumers seeking information about Complainant’s company and products […], will be diverted to Respondent’s website containing links to other websites and content unaffiliated with Complainant”; and, e) “Respondent’s use of the [Disputed Domain Name] constitutes an intent, for commercial gain, to misleadingly divert consumers to a website with a gateway for links to other websites (including websites unaffiliated with Complainant and those that lead to websites where products and services in competition to Complainant are offered for sale).” The Disputed Domain Name has been registered and is being used in bad faith because: a) “Respondent acquired and is commercially using the [Disputed Domain Name], a domain name that is confusingly similar to Complainant’s COBB-VANTRESS [M]ark, to capitalize on Internet users’ efforts to find Complainant’s website and seek information about Complainant’s products” […] which the Disputed Domain Name “redirects these consumers to a website that contains and links to unaffiliated, competitive third-party websites”; b) “Respondent is clearly using the [Disputed Domain Name] to attract Complainant’s customers for Respondent’s own commercial gain […] and “to attract Complainant’s customers and profit from their confusion constitutes bad faith registration and use of the contested domain name under Policy [paragraph] 4(b)(iv)”; and, c) “[H]ad Respondent conducted even a preliminary trademark search, it would have found Complainant’s trademark registration in the COBB-VANTRESS [M]ark and the website associated with the [M]ark, and numerous additional references in commerce, on the Internet, and in publications, evidencing Complainant’s use of its marks in connection with Complainant’s goods and services.” B. Respondent Respondent did not reply to Complainant’s contentions. Respondent’s default does not automatically result in a decision in favor of Complainant. Complainant must establish each of the three elements required by paragraph 4(a) of the Policy. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 4.3, addresses the question of default by a respondent: “Does a respondent’s default/failure to respond to the complainant’s contentions automatically result in the complaint succeeding? Noting the burden of proof is on the complainant, a respondent’s default (i.e., failure to submit a formal response) would not by itself mean that the complainant is deemed to have prevailed; a respondent’s default is not necessarily an admission that the complainant’s claims are true.” Thus, although in this case Respondent has failed to respond to the Complaint, the burden remains with Complainant to establish the three elements of paragraph 4(a) of the Policy by a preponderance of the evidence. See, e.g., The Knot, Inc. v. In Knot We Trust LTD,WIPO Case No. D2006-0340. 6. Discussion and Findings Pursuant to the Policy, paragraph 4(a), Complainant is required to prove the presence of each of the following three elements to obtain the relief it has requested: (i) the Disputed Domain Name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; (ii) Respondent has no rights or legitimate interests in respect of the Disputed Domain Name; and, (iii) the Disputed Domain Name has been registered and is being used in bad faith. The standard of proof under the Policy is often expressed as the “balance of the probabilities” or “preponderance of the evidence” standard. Under this standard, an asserting party needs to establish that it is more likely than not that the claimed fact is true. See WIPO Overview 3.0, section 4.2. A. Identical or Confusingly Similar The first element of paragraph 4(a) of the Policy requires a complainant to establish first, that it has rights in a trade mark or service mark, and secondly, that the disputed domain name is identical or confusingly similar to that trade mark or service mark. Based upon the trademark registrations cited by Complainant, as well as supporting documents submitted as evidence, the Panel finds that Complainant has established rights in and to the COBB-VANTRESS Mark. Complainant contends, inter alia, that the Disputed Domain Name is confusingly similar to its well-known COBB-VANTRESS Mark in which Complainant has rights because “[t]he [Disputed Domain Name] incorporates Complainant’s COBB-VANTRESS [M]ark in full, changing the federally registered COBB-VANTRESS [M]ark only by removing the hyphen between the two words ‘[cobb]’ and ‘[vantress]’ and adding the generic top-level domain (‘gTLD’) ‘.com’”. For the Disputed Domain Name to be found identical or confusingly similar to the COBB-VANTRESS Mark, the relevant comparison is with the second-level portion, “cobbvantress” of the Disputed Domain Name, Similarly, the omission from the Disputed Domain Name of the hyphen found at the center of the COBB-VANTRESS Mark is insignificant for purposes of the Policy. Typographic differences, such as the inclusion or omission of grammatical marks, for example hyphens and apostrophes, are inadequate to avoid a finding of confusing similarity. See L’Oreal v. Tracey Johnson,WIPO Case No. D2008-1721; L’Oréal SA v. 张容容, LinChaoJie, Guangxi NanNing IDEA Business Planning Co., Ltd,WIPO Case No. D2010-1318; L’Oréal v 郭嘉洁,WIPO Case No. D2015-1132. Prior UDRP panels have held “the fact that a domain name wholly incorporates a complainant’s registered mark is sufficient to establish identity or confusing similarity for purposes of the Policy”. Oki Data Americas, Inc. v. ASD, Inc.,WIPO Case No. D2001-0903. Essentially, once a disputed domain name is found to incorporate a complainant’s mark in its entirety, analysis of any appended terms on a more complex level, such as likelihood of confusion is unnecessary for a finding of confusing similarity under the first element of the Policy, but may be applied to a finding under the second or third element. See Wal-Mart Stores, Inc. v. Richard MacLeod d/b/a For Sale,WIPO Case No. D2000-0662 (the issue in the analysis of the first factor is not whether there is confusion in the trademark infringement sense (an issue more properly considered under the legitimate interest and bad faith factors), but rather whether there is sufficient similarity between the domain name and the trademark to advance to consideration of the second and third factors.). The Panel agrees with the panel’s reasoning in the Wal-Mart Stores, Inc. decision above,and notes that section 1.7 of the WIPO Overview 3.0 provides: “[i]t is well accepted that the first element functions primarily as a standing requirement. The standing (or threshold) test for confusing similarity involves a reasoned but relatively straightforward comparison between the complainant’s trademark and the disputed domain name”. Given that Complainant’s COBB-VANTRESS Mark is readily recognizable as incorporated in its entirety into the Disputed Domain Name here, this Panel finds the Disputed Domain Name confusingly similar to the COBB-VANTRESS Mark in which Complainant has established trademark rights. Accordingly, the Panel finds that Complainant has satisfied paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests Under this second element of the Policy, a complainant is required to make out a prima facie case that the respondent lacks rights or legitimate interests. Once such prima facie case is made, the burden of production shifts to respondent to come forward with appropriate evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such appropriate evidence, a complainant is generally deemed to have satisfied the second element. WIPO Overview 3.0, section 2.1. See also, Malayan Banking Berhad v. Beauty, Success & Truth International,WIPO Case No. D2008-1393. As Respondent here has not filed a response, Complainant’s assertions remain unchallenged by Respondent. Complainant has argued that Respondent has no rights or legitimate interests in respect of the Disputed Domain Name because, inter alia, “[w]ithout Complainant’s authorization or consent, Respondent registered the [Disputed Domain Name]”; “Respondent is not commonly known by the [Disputed Domain Name], has not used or prepared to use the [Disputed Domain Name] in connection with a [bona fide] offering of goods or services, has not been authorized, licensed, or otherwise permitted by Complainant to register and/or use the concerned domain name”; “the [Disputed Domain Name] resolves to a website that contains content links to unaffiliated third party websites for services in competition with […] Complainant”; “consumers seeking information about Complainant’s company and products […],will be diverted to Respondent’s website containing links to other websites and content unaffiliated with Complainant”; and, “Respondent’s use of the [Disputed Domain Name] constitutes an intent, for commercial gain, to misleadingly divert consumers to a website with a gateway for links to other websites (including websites unaffiliated with Complainant and those that lead to websites where products and services in competition to Complainant are offered for sale).” Based on an assessment of the evidence on record, the Panel finds there is no indication that Respondent has been commonly known by the Disputed Domain Name or that it has used the Disputed Domain Name for a bona fide offering of goods or services. The Panel finds that Respondent has neither any connection with Complainant, nor has Respondent been authorized or licensed by Complainant to use and register its COBB-VANTRESS Mark or to register any domain name incorporating Complainant’s COBB-VANTRESS Mark. Prior panels under the Policy have found that “[i]n the absence of any license or permission from the Complainant to use its trademark, no actual or contemplated [bona fide] or legitimate use of the Disputed Domain Name could reasonably be claimed.” See Sportswear Company S.P.A. v. Tang Hong,WIPO Case No. D2014-1875; Chicago Pneumatic Tool Company LLC v. Texas International Property Associates – NA NA,WIPO Case No. D2008-0144; see also Six Continents Hotels, Inc. v. Patrick Ory,WIPO Case No. D2003-0098 (“There is no evidence of any commercial relationship between the Complainant and the Respondent which would entitle the Respondent to the mark. Consequently, the Panel concludes that the Respondent has no rights nor legitimate interests in the Disputed Domain Name given there exists no relationship between the Complainant and the Respondent that would give rise to any license, permission or authorization by which the Respondent could own or use the Domain Name.”). Since Respondent elected to submit no evidence in these proceedings, there is no evidence from Respondent to the contrary, i.e., that Respondent has been authorized or licensed to use Complainant’s Mark or is commonly known by the Disputed Domain Name. It is generally regarded as prima facie evidence of no rights or legitimate interests if a complainant shows that the disputed domain name is identical or confusingly similar to the complainant’s trademark, that the respondent is not commonly known by the disputed domain name, and that the complainant has not authorized the respondent to use its mark (or an expression which is confusingly similar to its mark), whether in the disputed domain name or otherwise. See Roust Trading Limited v. AMG LLC,WIPO Case No. D2007-1857; see also Marriott International, Inc. v. Thomas, Burstein and Miller,WIPO Case No. D2000-0610 (no rights or legitimate interests when there is no evidence that respondent is commonly known by the domain name). The Panel has found above that the Disputed Domain Name is confusingly similar to Complainant’s COBB-VANTRESS Mark. The Panel accepts Complainant’s contentions that Respondent is not commonly known by the Disputed Domain Name and that Respondent has never been authorized by Complainant to use Complainant’s COBB-VANTRESS Mark. The Panel is therefore satisfied that Complainant has provided sufficient prima facie evidence that Respondent has no rights or legitimate interests in the Disputed Domain Name. Complainant has submitted evidence in the record to support its contention that the Disputed Domain Name at the time of filing the Complaint, “resolves to a website that contains content links to unaffiliated third party websites for services in competition with […] Complainant.” As a result Complainant has made a persuasive case that “Respondent’s use of the [Disputed Domain Name] constitutes an intent, for commercial gain, to misleadingly divert consumers to a website with a gateway for links to other websites (including websites unaffiliated with Complainant and those that lead to websites where products and services in competition to Complainant are offered for sale”). The Panel finds based on the evidence presented, therefore, that Respondent is neither making active use of the Disputed Domain Name in connection with its own bona fide offering of goods or services, nor making fair use of the Disputed Domain Name without intent for commercial gain. In view of the above, the Panel finds that Complainant has made out a prima facie case that Respondent has no rights or legitimate interests in the Disputed Domain Name. Respondent has not submitted any argument or evidence to rebut Complainant’s case. The Panel determines, therefore, that Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith Paragraph 4(b) of the Policy sets out a non-exhaustive list of circumstances that point to bad faith conduct on the part of a respondent: (i) circumstances indicating that the registrant has registered or the registrant has acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registrations to 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 registrant’s documented out-of-pocket costs directly related to the domain name; or (ii) the registrant has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in corresponding domain name, provided that the registrant has engaged in a pattern of such conduct; or (iii) the registrant has registered the domain name primarily for the purpose of disrupting the business of a competitor; or (iv) by using the disputed domain name, the registrant has intentionally attempted to attract, for commercial gain, Internet users to the registrant’s website or other online location, by creating a likelihood of confusion with complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the registrant’s website or location or of a product or service on the registrant’s website or location. Complainant first contends that given the renown and worldwide use by Complainant of the COBB-VANTRESS Mark, that even a preliminary search of Complainant’s trademark and online presence would reveal, it is implausible that Respondent was unaware of Complainant when it registered the Disputed Domain Name, and, therefore, Respondent’s knowledge of Complainant’s intellectual property rights, including trademarks, at the time of registration of the Disputed Domain Name proves bad faith registration. Prior UDRP panels have held that actual and constructive knowledge of a complainant’s rights at the time of registration of a domain name constitutes strong evidence of bad faith. See WIPO Overview 3.0, section 3.2.2. See also eBay Inc. v. Sunho Hong,WIPO Case No. D2000-1633 (“actual or constructive knowledge of the Complainant’s rights in the Trademarks is a factor supporting bad faith”). The Panel finds that Respondent’s registration of the Disputed Domain Name with awareness of Complainant and the COBB-VANTRESS Mark, and in the absence of its own rights or legitimate interests, amounts to registration in bad faith by Respondent. See Royds Withy King LLP v. Help Tobuy,WIPO Case No. D2019-0624. Complainant also contends “Respondent’s efforts to misappropriate Complainant’s COBB-VANTRESS mark, capitalize on consumer confusion, and divert unsuspecting Internet users to third-party websites unrelated to Complainant undoubtedly constitutes bad-faith registration and use of the contested domain name under Policy [paragraph] 4(b)(iv)”. Numerous panels under the Policy have found the registration and use of a domain name that is confusingly similar to a complainant’s trademark to constitute bad faith pursuant to paragraph 4(b)(iv) of the Policy where, as here, the domain name is associated with monetized parking pages that could be construed as associated with the complainant. See, e.g., Tyson Foods, Inc. v. Domain Administrator, See PrivacyGuardian.org / Site Matrix LLC, Domain Administrator,WIPO Case No. D2018-2050; Wal-Mart Stores, Inc. v. Whois Privacy, Inc.,WIPO Case No. D2005-0850; and Dr. Martens International Trading GmbH, Dr. Maertens Marketing GmbH v. Private Whois Service,WIPO Case No. D2011-1753. In addition, in light of the long history of over 30 years of use Complainant’s trademark and Complainant’s renown and brand recognition in the United States, where Respondent is located, the Panel finds it is likely that Respondent knew of Complainant’s mark and by incorporating it in its entirety into the Disputed Domain Name, Respondent sought to obtain a commercial benefit by attracting Internet users based on the confusion it created between the Disputed Domain Name and the COBB-VANTRESS Mark. See Western Union Holdings, Inc. v. Manuel Rodriguez,WIPO Case No. D2006-0850. The Panel finds Complainant’s arguments and evidence persuasive, and has received no arguments or evidence from Respondent to the contrary. Considering all the circumstances, the Panel concludes that Respondent has registered and used the Disputed Domain Name in bad faith and Complainant has satisfied paragraph 4(a)(iii) of the Policy. 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 Scott R. Austin
Sole Panelist
Date: April 30, 2020
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