WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
The HH Franchise Company, LLC v. N.A. Domain Administrator
Case No. D2007-0413
1. The Parties
The Complainant is The HH Franchise Company, LLC, Norcross, Georgia, United States of America, represented by Cushing, Morris, Armbruster & Montgomery, LLP, United States of America.
The Respondent is N.A. Domain Administrator, West Bay, Cayman Islands, United Kingdom of Great Britain and Northern Ireland.
2. The Domain Name and Registrar
The disputed domain name <heavenlyhams.com> is registered with Seek Domain Names, Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 16, 2007. On March 19, 2007, the Center transmitted by email to Seek Domain Names, Inc. a request for registrar verification in connection with the domain name at issue. On March 21, 2007, Seek Domain Names, Inc. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. 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 March 23, 2007. Because of a technical problem with the original electronic notification of the Complaint, the Center renotified the Complaint (electronically only) on April 20, 2007. The due date for Response was May 10, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 11, 2007.
The Center appointed the Honourable Sir Ian Barker as the sole panelist in this matter on May 11, 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
The Complainant is the owner of United States Trademark Registrations for the words HEAVENLY HAM and for other registered trademarks incorporating the words HEAVENLY HAM. The first HEAVENLY HAM trademark registration was issued on March 16, 1982. The Complainant, through its affiliates, has registered the domain names <heavenlyham.com> and <heavenlyham.biz>.
The Complainant and its predecessors in interest with respect to the said marks have been retailing hams and other gourmet meat products since 1984 through specialty Heavenly Ham retail stores as well as through catalogue, mail order, websites and other retail avenues. Sales through the websites have increased since their launch in 1996. The Complainant has expended significant effort and funds in regional, national and local marketing and advertising of its gourmet meat products.
The Complainant has been unable to obtain a physical address or facsimile information for the Respondent, or a viable email address. The only contact and identity information the Complainant has been able to obtain regarding the Respondent is from a WHOIS search.
The Respondent registered the domain name <heavenlyhams.com> on February 18, 2007.
The Respondent is using the disputed domain name on a website which offers sales of meat products similar to those marketed under the Complainant’s marks and on the Complainant’s websites.
The Respondent’s website, accessed through the disputed domain name, invites users “to order a heavenly ham”. In addition, the website also displays click-through sites for travel, business, finance, entertainment, phone and lifestyle products.
5. Parties’ Contentions
The Complainant made the following allegations:
The disputed domain name is confusingly similar to the Complainant’s registered marks. The Respondent has no rights or legitimate interest in respect of the disputed domain name. The Respondent is using the Complainant’s mark in an unauthorized way on its website.
The Respondent registered and is using the disputed domain name in bad faith. The existence of the Complainant’s marks could easily have been discovered. The Respondent is using the disputed domain name to sell direct-to-market competing products similar to those marketed by the Complainant.
The Respondent is using the goodwill and fame of the Complainant’s marks to draw customers to its website and then divert them to the websites of competitors by providing links to other sites under the name ‘Heavenly Ham’. The Respondent’s website is minimal – essentially, a one-page general advertisement or clearing house used to entice potential purchasers and to provide them with links to the sites of the Complainant’s competitors.
Nowhere on the Respondent’s site is there any means of ascertaining who owns or operates the site or the business it is supposed to represent.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Paragraph 4(a) of the Policy requires the Complainant to prove each of the following three elements to obtain an order that a domain name should be transferred:
(1) the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(2) the Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The Panel finds that the Complainant has established its rights in the HEAVENLY HAM mark.
The disputed domain name is clearly confusingly similar to the Complainant’s registered mark, HEAVENLY HAM. Only the additional ‘s” in the domain name differentiates the two. This extra letter does nothing to remove the confusing similarity. The Complainant has therefore established the first criterion under Paragraph 4(a) of the Policy.
B. Rights or Legitimate Interests
The Complainant gave the Respondent no rights in its marks. The Complainant having made a prima facie case of the Respondent’s lack of rights or legitimate interests in the disputed domain name, the onus, therefore, shifts to the Respondent to demonstrate that it comes within one of the limbs of paragraph 4(c) of the Policy. The Respondent has made no response. There is no evidence on which the Panel could find that the Respondent can avail itself of Paragraph 4(c). Accordingly, the Panel finds that the second limb of Paragraph 4(a) of the Policy has been proved.
C. Registered and Used in Bad Faith
It is not difficult to infer both bad faith registration and use. The Complainant owns numerous marks incorporating the words “Heavenly Ham”. The trademark registration register could easily have been searched by the Respondent.
Bad faith is underlined by the way in which the Respondent’s minimalist website uses the words “Heavenly Ham” and invites users on the website to follow links to a competitor of the Complainant for the purchase of products competing with the Complainant’s products.
The inference of bad faith registration and bad faith use is overwhelming. This is another example of blatant cybersquatting using the mark of a well-known product. Accordingly, the Panel finds that the Complainant has also satisfied the third limb of Paragraph 4(a) of the Policy.
For all 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 <heavenlyhams.com> be transferred to the Complainant.
Sir Ian Barker
Dated: May 25, 2007