The Complainant is Heaven Hill Distilleries, Inc., United States of America (“United States”, or “USA”, or “US”), represented by Wyatt, Tarrant & Combs, LLC, United States.
The Respondent is Registration Private, Domains By Proxy, LLC, United States, / Carolina Rodrigues, Fundacion Comercio Electronico, Panama.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 17, 2021. On September 18, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 20, 2021, 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 September 21, 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 September 21, 2021. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amended Complaint on September 27, 2021.
The Center verified that the Complaint together with the amended Complaints 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 30, 2021. In accordance with the Rules, paragraph 5, the due date for Response was October 20, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 21, 2021.
The Center appointed George R. F. Souter as the sole panelist in this matter on October 27, 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 BackgroundThe Complainant was founded as a distiller and distributor of bourbon whiskey in 1935, and is one of the largest spirits supplier in the USA, maintaining a broad portfolio of whiskeys, liqueurs, vodkas, rums and other spirits, under its HEAVEN HILL trademark.
The Complainant has provided the Panel with details of numerous registrations of trademarks comprising the trademark HEAVEN HILL or containing HEAVEN HILL as a major element, in the USA and elsewhere. These include US Registration No. 0693986, registered on March 1, 1960, in connection with the trademark HEAVEN HILL.
The disputed domain name was registered on September 14, 2021, and resolves to a website
containing pay-per-click links.
5. Parties’ Contentions A. ComplainantThe Complainant alleges that the disputed domain name is confusingly similar to its HEAVEN HILL trademark, containing its HEAVENHILL trademark (there being no spaces between letters in connection with domain name registration) in its entirety, with the mere substitution of the letter “n” in the trademark with the letter “r” in the disputed domain name.
The Complainant alleges that the Respondent lacks rights or legitimate interests in the disputed domain name, in particular, to the best of the Complainant’s knowledge, the Respondent is not generally known by the disputed domain name, and the Complainant has never granted permission to use its HEAVEN HILL trademark in connection with registration of a domain name, or otherwise.
The Complainant alleges that the disputed domain name was registered in bad faith, and is being used in bad faith in connection with the website referred to above.
B. RespondentThe Respondent did not reply to the Complainant’s contentions.
6. Discussion and FindingsParagraph 4(a) of the Policy lists three elements that the Complainant must prove to merit a finding that the disputed domain name be transferred to the Complainant:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) the 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.
A. Identical or Confusingly SimilarThe Panel finds that the Complainant has sufficient rights to its HEAVEN HILL trademark for the purposes of these proceedings, including considerable common law trademark rights, arising from use of the Complainant’s HEAVEN HILL trademark.
It is well established in prior decisions under the UDRP, with which the Panel agrees, that a generic Top-Level Domain (“gTLD”) is irrelevant when comparing a trademark with a disputed domain name.
Accordingly, the Panel considers the gTLD “.com” to be irrelevant in the circumstances of the present case, and so finds.
It is well-established in prior decisions under the Policy that the mere difference of a single letter in a multi-letter trademark, known as “typosquatting”, can justify a finding of confusing similarity between a trademark and a disputed domain name. In the circumstances of the present case, the Panel notes the substitution of the letter “n” in the trademark with the letter “r” in the disputed domain name. In the Panel’s opinion, this is sufficient to justify a finding of confusing similarity between the Complainant’s trademark and the disputed domain name, and so finds.
B. Rights or Legitimate InterestsIt is the consensus view of UDRP panels, with which the Panel agrees, that a prima facie case advanced by the complainant will generally be sufficient for the complainant to be deemed to have satisfied the requirement of paragraph 4(a)(ii) of the Policy, provided the respondent does not come forward with evidence demonstrating rights or legitimate interests in the domain name and the complainant has presented a sufficient prima facie case to succeed under paragraph 4(a)(ii) of the Policy.
The Panel considers the submissions put forward by the Complainant as sufficient to be regarded as a prima facie case, and the Respondent did not take the opportunity to advance any claim of rights or legitimate interests in the disputed domain name to rebut this prima facie case.
Accordingly, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy, in connection with both disputed domain names.
C. Registered and Used in Bad FaithThe Panel is of the view that the finding that a respondent has no rights or legitimate interests in a disputed domain name can lead, in appropriate circumstances, to a finding of registration of a disputed domain name in bad faith. The circumstance of the present case, in which the Panel regards it as more than likely that the Complainant’s trademark was deliberately appropriated in the disputed domain name, are such that the Panel concludes that a finding of registration in bad faith is justified, and so finds.
The Panel is of the opinion that anyone connecting to the website operated under the disputed domain name would be likely to assume that it was connected to the Complainant, and to be, consequently deceived, to the detriment of the Complainant. In the circumstances of the present case, the Panel considers that an Internet user familiar with the Complainant’s trademark and confronted by the disputed domain name, could very well, through inadvertence, mis-typing or otherwise, believe that he was communicating with the Complainant. Although the website operated under the disputed domain name does no currently appear to offer pay-per-click links to products competing with those of the Complainant, the period since registration of the disputed domain name is very short, and such links could very well be added in the future. In the meantime, the Panel considers the current use of the disputed domain name to be other than bona fide use, and the Panel, accordingly, finds that the disputed domain name is being used in bad faith.
Accordingly, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(iii) of the Policy.
7. DecisionFor 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,
George R. F. Souter
Sole Panelist
Date: November 10, 2021