Complainant is The Bread Beckers, Inc. of Woodstock, Georgia, United States of America, represented by The Gigalaw Firm, United States of America.
Respondent is Registrant : Mary Albertson of Palm Beach, Florida, United States of America; Registrant : Domain Administration of Pompano Beach, Florida, United States of America.
The disputed domain name <breadbecker.com> is registered with Moniker Online Services, LLC.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 15, 2009. On December 15, 2009, the Center transmitted by email to Moniker Online Services, LLC a request for registrar verification in connection with the disputed domain name. On the same day, Moniker Online Services, LLC. 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 Complainant on December 17, 2009 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amendment to the Complaint on December 18, 2009. The Center verified that the Complaint together with the amendment to the 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(a) and 4(a), the Center formally notified Respondent of the Complaint, and the proceedings commenced on December 22, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was January 11, 2010. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on January 12, 2010.
The Center appointed Michael A. Albert as the sole panelist in this matter on January 20, 2010. 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.
Complainant was incorporated as “The Bread Beckers, Inc.” in Georgia, United States, on February 17, 1998. Complainant sells wheat, other dry grains and beans, yeast, bakeware, and other baking-related accessories, via its website at “www.breadbeckers.com” as well as a retail store and a warehouse.
As set forth in an undisputed declaration of its CEO, Complainant has operated continuously as “The Bread Beckers” since February 17, 1998, and has continuously sold goods and services bearing this name since that date. It employs ten people and had gross sales in 2008 of USD2.9 million. It has been promoted using THE BREAD BECKERS mark in various newspapers, books, a newsletter, and on the Internet. Complainant owns a United States federal trademark application for THE BREAD BECKERS, Serial No. 77-725,173, for retail store and online retail store services relating to the above-described product line. “Becker” is the last name of one of Complainant's founders and current officers.
Respondent operates a website using the disputed domain name, presenting in large lettering the words BREAD BECKER with the graphic of bread. Its website includes numerous links to goods and services that are competitive with Complainant's product line.
Complainant contends that it has rights to the BREAD BECKER mark by virtue of twelve years of continuous commercial use; that Respondent registered the domain name <breadbecker.com> in 2006, more than eight years after Complainant's first use; that the domain name contains both dominant portions of Complainant's mark; that Respondent had no rights or legitimate interests in the mark because it does not operate a business under that name, does not appear to be commonly known by that name, and has never been licensed by Complainant; and that the domain name has been registered and used in bad faith.
Respondent did not reply to Complainant's contentions.
The Panel finds that Complainant owns common-law trademark rights in the mark THE BREAD BECKERS; that the disputed domain name is confusingly similar to Complainant's trademark; that Respondent does not have rights or legitimate interests in the domain name, and that the domain name was registered and used in bad faith.
Complainant has been using the mark THE BREAD BECKERS in commerce for twelve years in connection with the bread business and related goods and services. Such usage establishes common-law trademark rights. See, e.g., The Bread Beckers, Inc. v. Belize Domain WHOIS Service Lt and Comar Ltd., WIPO Case No. D2009-0787 (“The Panel finds, consistent with the consensus view, that Complainant has demonstrated rights in the mark BREAD BECKERS”).
The disputed domain name differs from Complainant's mark only by the removal of the article “the” and the plural “s”. Neither of these differences suffices to avoid a finding of confusing similarity, as numerous panels have held. See Columbia Pictures Industries, Inc. v. North West Enterprise, Inc., WIPO Case No. D2006-0951 (“[T]he absence of the letter ‘s' does nothing to decrease the domain name's confusing similarity.”); Staples, Inc., Staples The Office Superstore, Inc., and Staples Contract and Commercial, Inc. v. SkyLabs Corporation and DL Enterprises, WIPO Case No. D2004-0220 (finding confusing similarity despite a domain name's “deletion of the plural”).
Respondent has no rights or legitimate interests in the disputed domain name. Complainant is a small business that closely controls all uses of its THE BREAD BECKERS mark. The unrebutted evidence of record shows that Complainant has never assigned, licensed, or otherwise conveyed any rights in its mark to Respondent. “Th[is] fact, on its own, can be sufficient to prove the second criterion [of the Policy].” Six Continents Hotels, Inc. v. IQ Management Corporation, WIPO Case No. D2004-0272.
No evidence of record suggests that Respondent has become known by the domain name. Respondent does not appear to have used the domain name in connection with any bona fide offering of goods or services. Rather, Respondent is using the domain name in connection with a portal site that provides links to various third-party goods and services that compete with Complainant's goods and services. See MBI, Inc. v. Moniker Privacy Services/Nevis Domains LLC, WIPO Case No. D2006-0550 (“the operation of commercial link services of this type, designed to lure Internet users and divert them to other commercial sites by the use of domain names identical or similar to a complainant's trademark, do not confer a legitimate right to or interest in a domain name”); Emmis Television Broadcasting, L.P., d/b/a KHON-TV v. Henry Chan, WIPO Case No. D2004-0366 (“a skeletal website, which serves only to redirect users to a search engine and unrelated third party vendors” is not a bona fide offering of goods or services).
The Panel finds that Respondent has registered and used the domain name in bad faith in the manner illustrated by paragraph 4(b)(iv) of the Policy (attempting to attract, for commercial gain, Internet users to a web site by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of the services provided there).
As the panel stated in Columbia Pictures Industries, Inc. v. North West Enterprise, Inc., WIPO Case No. D2006-0951: “Web pages of the type used by the Respondent in connection with the Domain Name – sometimes known as an “online domain monetization system”, a “monetized parking page” or a “paid link farm service” – have become an “increasingly popular way for domain name registrants to profit from their activity with little effort”. Wal-Mart Stores, Inc. v. Whois Privacy, Inc., WIPO Case No. D2005-0850.
In this case, Respondent has attempted to attract, for commercial gain, Internet users to a website, by creating a likelihood of confusion with THE BREAD BECKERS mark as to source, sponsorship, affiliation, or endorsement. While there is no direct evidence of Respondent's knowledge of Complainant's prior use of the mark, the only plausible explanation in the length of use by Complainant, uniqueness of the mark, and the context of the other facts of record is that Respondent adopted the domain name to trade on the goodwill associated with Complainant's mark. See, e.g., Pancil, LLC v. Jucco Holdings, WIPO Case No. D2006-0676 (“The only explanation of what has happened is that the Respondent's motive in registering and using the sites seems to be… simply to disrupt the Complainant's relationship with its customers or potential customers or attempt to attract Internet users for potential gain. These both constitute evidence of registration and use in bad faith: paragraph 4(b)(iii) & (iv) of the Policy.”); Arla Foods amba v. Jucco Holdings, WIPO Case No. D2006-0409 (“the practice of registering a domain name and using it to redirect a user to a website which is used for the sale of competing services constitutes evidence of registering and using a trademark in bad faith”).
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, <breadbecker.com>, be transferred to Complainant.
Michael A. Albert
Dated: February 3, 2010