The Complainant is Heaven Hill Distilleries, Inc., United States of America (“United States”), represented by Wyatt, Tarrant & Combs, United States.
The Respondent is Super Privacy Service LTD c/o Dynadot, United States / domain admin, China. 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 18, 2021. On March 18, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On April 9, 2021, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on April 14, 2021 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 April 15, 2021. 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 April 16, 2021. In accordance with the Rules, paragraph 5, the due date for Response was May 6, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 7, 2021. The Center appointed Dawn Osborne as the sole panelist in this matter on May 12, 2021. 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 which owns the trade mark HEAVEN HILL registered, inter alia, in the United States under trade mark no. 0693986 since March 1, 1960 for whisky with first use in commerce recorded as 1937. It owns domain names including the HEAVEN HILL mark including The Domain Name was registered four days later on February 8, 2021 and is attached to a site offering it for sale for USD 990. 5. Parties’ Contentions A. Complainant The Complainant’s contentions can be summarised as follows: The Complainant is a distillery which owns the trade mark HEAVEN HILL registered, inter alia, in the United States under trade mark no. 0693986 since March 1, 1960 for whisky with first use in commerce recorded as 1937. It owns domain names including the HEAVEN HILL mark including The Domain Name is confusingly similar to the HEAVEN HILL trade mark adding the generic words “bourbon” and “experience” which add to the likelihood of confusion because of the Complainant’s trade mark application referred to above. “.com” is a generic Top-Level Domain (“gTLD”) indicator Internet users must use as part of its address and should be omitted in the confusing similarity comparison. The Respondent does not have any rights or legitimate interests in the Domain Name. The Domain Name is set up to reach a landing page offering the Domain Name for sale for USD 990, a sum in excess of the costs of registration. This is not a bona fide offering of services or goods or a legitimate noncommercial or fair use. The Respondent is not commonly known by the Domain Name and has never been given permission by the Complainant to use the Complainant’s trade mark for any purpose. The Domain Name has been registered and used in bad faith. Offering it for sale for USD 990 demonstrates the Respondent’s primary intention behind registering the Domain Name is selling it for financial gain. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar The Domain Name consists of the Complainant’s HEAVEN HILL mark, the words “bourbon” and “experience” and the gTLD “.com”. The addition of the words “bourbon” and “experience” does not prevent confusing similarity between the Domain Name and the Complainant’s mark which is still recognisable in the Domain Name. The gTLD “.com” does not distinguish the Domain Name from the Complainant’s mark as the “.com” element of the Domain Name is merely functional in this case and, in such a context traditionally disregarded for the purposes of the Policy. Accordingly, the Panel holds that the Domain Name is confusingly similar for the purposes of the Policy with a mark in which the Complainant has rights. As such the Panel holds that paragraph 4(a)(i) of the Policy has been satisfied. B. Rights or Legitimate Interests The Respondent is not authorised by the Complainant and is not commonly known by the Domain Name. The site attached to the Domain Name offers the Domain Name containing the Complainant’s mark for sale for USD 990, a sum in excess of the costs of registration which is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. As such the Panel finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy. C. Registration and Use in Bad Faith The Domain Name containing the Complainant’s distinctive mark has been offered for sale for profit for USD 990, a sum in excess of out of pocket costs relating to the Domain Name. The fact that the Domain Name was registered four days after the Complainant applied for a trade mark in the United States for the mark HEAVEN HILL BOURBON EXPERIENCE (with figurative element) demonstrates opportunistic bad faith on the part of the Respondent. As such, the Panel holds that the Complainant has made out its case that the Domain Name was registered and used in bad faith primarily for the purposes of sale for profit and has satisfied the third limb 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 Domain Name Dawn Osborne
Sole Panelist
Date: May 26, 2021
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