The Complainant is Heaven Hill Distilleries, Inc., United States of America (“United States”), represented by Wyatt, Tarrant & Combs, United States.
The Respondent is Contact Privacy Inc. Customer 0157950512, Canada / Andrea Latimer, Latimer, 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 June 18, 2020. On June 19, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On June 19, 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 the Complainant on June 23, 2020 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on June 25, 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 the Respondent of the Complaint, and the proceedings commenced on July 1, 2020. In accordance with the Rules, paragraph 5, the due date for Response was July 21, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 23, 2020. The Center appointed Martin Schwimmer as the sole panelist in this matter on August 3, 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 The Complainant is a distillery that sells various spirits under the Trademark HEAVEN HILL (such as United States trademark registration number 0693986, registered March 1, 1960). The Respondent registered the Disputed Domain Name The Complainant owns numerous registrations worldwide for the trademark HEAVEN HILL in relation to whiskey and other spirits. The Complainant has not authorized the Respondent’s use of the Trademark in any manner. The Disputed Domain Name is not in use. “Heavenhills” is a form of typo-squatting of the Complainant’s Trademark. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar The Complainant has submitted proof of its various registrations covering its HEAVEN HILL Trademark, and illustrated its use at “www.heavenhilldistillery.com”. For purposes of determining similarity between the Complainant’s Trademark and the Disputed Domain Name, the Panel notes that the addition of an “s” to the Complainant’s HEAVEN HILL Trademark does not change the sight, sound, or meaning of the Trademark for purposes of this factor. Accordingly, the Panel finds that the Complainant has satisfied paragraph 4(i) of the Policy. B. Rights or Legitimate Interests The Complainant asserts the Respondent has no form of authorization from the Complainant to use the Trademark. Furthermore, the Respondent is not known by the Disputed Domain Name. Also, the Disputed Domain Name is not in use, and therefore the Respondent is not making bona fide legitimate use of the Name. Accordingly, also noting the Panel’s findings below, the Complainant has established the second factor, pursuant to paragraph 4(ii) of the Policy. C. Registered and Used in Bad Faith The record shows that the Complainant has been using its Trademark since 1937. While the record would have benefitted by evidence of sales levels, or advertising volume, or third-party media coverage, or prior judicial recognition of the mark’s reputation, the Complainant’s U.S. trademark registrations suggest that the HEAVEN HILL trademark is strong. The Complainant’s primary argument regarding bad faith is that the Disputed Domain Name is a typo of the Trademark. It is correct that “typo-squatting” is evidence of bad faith, however this particular typo is not probative of the Respondent’s prior awareness of the Complainant. In contrast, this Panel finds that in the decisions cited by the Complainant, the misspellings including “charoulette”, “hoilidayinn”, and “minorleaugebaseball” indicate the respondents prior awareness. See Andrey Ternovkiy d/b/a Chatroulette v. Private Registration, Account Privacy/Scott Elliott, Transcom Ltd.,WIPO Case No. D2018-2144; Six Continents Hotels, Inc. v. Zuccarini,WIPO Case No. D2003-0161; Nat’l Ass’n of Prof’l Baseball Leagues, Inc., d/b/a Minor League Baseball v. John Zuccarini,WIPO Case No. D2002-1011. To add some fictitious examples, the adoption of “Mersedes Benz” or “Starbuckss” would tend to prove a prior awareness of the trademarks MERCEDES BENZ or STARBUCKS. One can easily deduce the trademarks targeted by these misspelled names. A probative typo might be thought of as an immaterial change to a distinctive mark, that does not result in a new name with a potentially independent meaning. Here, the Disputed Domain Name is However, the Complainant’s case is aided by considering the totality of the circumstances. It is the case that if one were to conduct a search of the term “heaven hills” on a search engine such as Google or Bing, as the Panel did, the first twenty or so organic search results on both search engines all refer to the Complainant and its HEAVEN HILL products. In other words, if the Respondent ever conducted any search engine search of the term she sought to register, she had to have encountered the Complainant. Accordingly, considering the apparent uniqueness of the Complainant’s HEAVEN HILL trademark, it is fair to assume that the Respondent likely was aware of the Complainant. The Panel further draws a negative inference from the absence of use of the Disputed Domain Name, and draws an additional negative inference from the Respondent’s failure to respond to the Complaint. The Panel finds that the Respondent registered 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 Martin Schwimmer
Sole Panelist
Date: September 14, 2020
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