WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Rich Products Corporation v. Cynthia Kirk
Case No. D2007-0871
1. The Parties
Complainant is Rich Products Corporation, Buffalo, New York, United States of America, represented by Simpson & Simpson PLLC, Williamsville, New York United States of America.
Respondent is Cynthia Kirk, Greenville, Texas, United States of America.
2. The Domain Name and Registrar
The disputed domain name <healthyhemp.com> is registered with Go Daddy Software.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 13, 2007. On June 14, 2007, the Center transmitted by email to Go Daddy Software a request for registrar verification in connection with the domain name at issue. On June 15, 2007, Go Daddy Software transmitted by email to the Center its verification response confirming that 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”), 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on June 21, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was July 11, 2007. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on July 13, 2007.
The Center appointed Paul E. Mason as the sole panelist in this matter on July 25, 2007. 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 alleges, and Respondent has not denied, that Complainant registered and owns the following HEALTHY HEMP marks:
U.S. Trademark Registration No. 2,633,686 dated October 8, 2002 for breads & bakery goods (Annex 4 of Complaint);
U.S. Trademark Registration No. 3,196,844 dated January 9, 2007 for bakery goods, bread & tortillas (Annex 5 of Complaint)
Complainant also alleges ownership of certain United States and Canadian trade or service mark applications for the HEALTHY HEMP name.
Complainant also claims commercial use of the HEALTY HEMP mark in connection with breads and bakery goods in the United States since March 15, 2001.
5. Parties’ Contentions
A. Complainant
Complainant alleges that:
With respect to similarity, the domain name registered by Respondent is the same as Complainant’s trademark, except for the top-level domain name indicator.
With respect to rights in the domain name, Respondent has shown no such rights, and registered the domain name on November 6, 2006, several years after Complainant registered its first United States trademark for HEALTHY HEMP. The Complaint contains sworn statements from an assistant in Complainant’s lawyer’s office declaring that he searched the Internet extensively but was unable to reference any use of the domain name for provision of legitimate goods or services (Complaint, Annex 10).
With respect to bad faith registration and use of the domain name, Respondent has simply “parked” the domain name with the Registrar and is redirecting website visitors to other sites related to hemp based food products, competing with Complainant’s products.
B. Respondent
Respondent did not reply to Complainant’s contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar:
The Panel finds that Complainant has established its rights in the mark HEALTHY HEMP by showing in the Annex to the Complaint its United States Trademark Office registration for this mark dated October 8, 2002, which predates the registration of the domain name.
More importantly, under U.S. trademark law and practice, it is actual use in commerce which determines primary rights in a mark, rather than mere registration thereof with the Trademark Office. Complainant has alleged use in commerce of the HEALTHY HEMP mark in the United States of America. Since March 15, 2001 through its French Meadow Bakery division.
The domain name is the same as Complainant’s mark except for the GLTD identifier. A myriad of cases have held that this is a distinction without a difference. Therefore the Panel finds the domain name to be identical or confusingly similar to Complainant’s mark.
B. Rights or Legitimate Interests
The Panel has seen no evidence of any legitimate right or interest by the Respondent in the “Healthy Hemp” name. In this vein, the Panel has not seen any evidence of Respondent using the domain name in connection with the offering of other legitimate goods or services. Therefore the Panel finds that Respondent has no rights or legitimate interests in the domain name.
In this case, Respondent has “parked” the domain name with the Registrar, GoDaddy. Under the circumstances, this in itself does not establish any right or legitimate interest in the domain name by Respondent, see Sports Holdings, Inc. v. MB, WIPO Case No. D2006-1262:
“Here, it is clear that the Respondent has no rights or legitimate interests in the Domain Name. First, Complainant has shown that the domain name is simply ‘parked’ with the Registrar, in that the Website merely links to other commercial websites and does not itself offer any original content or goods or services [footnote omitted]. The use of a domain name that merely offers links to other websites is not a bona fide offering of goods and services pursuant to paragraph 4(c)(i) of the Policy. See e.g., Southern Communications Services, Inc. d/b/a Southern LINC v. Henry Chan, WIPO Case No. D2004-0214 (May 10, 2004). Respondent, in defaulting, has not disputed Complainant’s contention in this regard.”
C. Registered and Used in Bad Faith
Under widely accepted UDRP case doctrine first established in the Telstra v. Nuclear Marshmallows Ltd., WIPO Case No. D2000-0003, case several years ago, the bad faith element was further defined to have two sub-elements – bad faith registration and bad faith use of the domain name.
In the Complaint, Complainant alleges bad faith registration by the fact that Respondent registered the domain name several years after Complainant registered its mark with the United States Trademark Office, and did not respond to Complainant’s cease and desist letters sent via the postal service and email. While the letters were returned with the stamp “Addressee Unknown”, Complainant did receive confirmation that its email was successfully transmitted. The Panel draws the inference that Respondent took steps to avoid replying to Complainant, and finds bad faith registration.
The bad faith use issue is somewhat less straightforward in the present case.
First, we note that hemp is a product with increasing legitimate commercial interest in the U.S. as described in the article “Sober North Dakotans Hope to Legalize Hemp” in The New York Times online, www.nytimes.com dated July 24, 2007. According to the article, hemp is already found in the U.S. in clothes, lotions, snack bars, car door panels, insulation and more.
On July 25, 2007, the Panel visited the website deriving from the domain name, <healthyhemp.com>. The domain name is “parked” with the Registrar GoDaddy which apparently has set up this web page with paid ads for various products and services. Here we encountered “sponsored” (paid) link-style advertisements for a variety of products and services associated with the words “healthy” and “hemp”. These so-called “sponsored” links on the parked site redirect visitors to ads for a number of hemp-based products and services, some of which are hemp-based food products and others which are unrelated to food.
Some of the initial links on the site included, “Hemp Products”, “Hemp Oil”, “Hemp Bag”, “Hemp Shampoo”, “Hemp Food”, “Hemp Seeds”.
When the Panel visited the site and clicked on the “Hemp Food” link, it did not include any bread or bakery products competing directly with those of Complainant - we saw ads for hemp-based organic rice bran, raw nuts, dried fruits etc.
However, we observe that the types of products advertised may change at any time as new advertisers sign up on the site. This is the nature of a commercially “parked” domain name and related website.
So we return to the “parked” domain name question, and reference the case Maplin Electronics Limited v. Lee Jeongsoon, WIPO Case No. D2006-0011. We agree with the conclusion and reasoning by the Panel in that case:
“As determined by prior UDRP decisions, parking a domain name in such a manner for financial gain is common among cyber-squatting cases and may demonstrate bad faith on the part of the registrant. Deloitte Touche Tohmatsu v. Henry Chan, WIPO Case No. D2003-0584.”
For these reasons, the Panel finds bad faith use of the domain name in the instant case.
7. Decision
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <healthyhemp.com> be transferred to Complainant.
Paul E. Mason
Sole Panelist
Dated: July 31, 2007