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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

The Veggie Grill, Inc. v. Andrew Wall

Case No. D2016-0640

1. The Parties

Complainant is The Veggie Grill, Inc. of Santa Monica, California, represented by Bryan Cave, LLP, United States of America.

Respondent is Andrew Wall of Huntington Beach, California, United States of America.

2. The Domain Names and Registrar

The disputed domain names <veggiegril.com> and <veggiegrills.com> are registered with GoDaddy.com, LLC (the "Registrar").

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on April 1, 2016. On April 4, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On April 5, 2016, the Registrar 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" 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 Respondent of the Complaint, and the proceedings commenced on April 6, 2016. In accordance with the Rules, paragraph 5, the due date for Response was April 26, 2016. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on April 27, 2016.

The Center appointed M. Scott Donahey as the sole panelist in this matter on May 3, 2016. 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 is the registrant of the service marks VEGGIEGRILL and THE VEGGIE GRILL, marks which it has used in commerce for ten years as a provider of restaurant services. The earliest of these registered marks issued on August 24, 2010. Complaint, Annex 9. All foods provided in the restaurant are made 100% from plants, and Complainant's restaurants are a well-known vegetarian restaurant chain. Complainant has expended significant sums in the promotion of the service marks and the services associated therewith. Complaint, Annexes 6, 7, 8, and 10.

The disputed domain names were registered on October 6, 2015. Complaint, Annex 1. The disputed domain names have been redirected to a web site located at "www.pornhub.com", a pornographic web site at which pornographic videos and sex movies are offered. Complaint, Annex 2.

5. Parties' Contentions

A. Complainant

Complainant contends that the disputed domain names are confusingly similar to Complainant's VEGGIEGRILL and THE VEGGIE GRILL service marks, that Respondent has no rights or legitimate interests in respect of the disputed domain names, and that the disputed domain names have been registered and are being used in bad faith.

B. Respondent

Respondent did not reply to Complainant's contentions.

6. Discussion and Findings

Paragraph 15(a) of the Rules instructs the Panel as to the principles the Panel is to use in determining the dispute: "A Panel shall decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."

Paragraph 4(a) of the Policy directs that the complainant must prove each of the following:

1) that 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) that the respondent has no rights or legitimate interests in respect of the domain name; and,

3) that the domain name has been registered and is being used in bad faith.

A. Identical or Confusingly Similar

The disputed domain name <veggiegril.com> differs from Complainant's VEGGIEGRILL service mark only in the omission of the final "l" present in the service mark and in the addition of the generic Top-Level Domain (gTLD) suffix ".com". Accordingly, the Panel finds that the disputed domain name <veggiegril.com> is confusingly similar to Complainant's VEGGIEGRILL service mark.

The disputed domain name <veggiegrills.com> differs from Complainant's VEGGIEGRILL service mark only in the addition of the final "s" designating a plural and in the addition of the ".com"gTLD suffix. Accordingly, the Panel finds that the disputed domain name <veggiegrills.com> is confusingly similar to Complainant's VEGGIEGRILL service mark.

B. Rights or Legitimate Interests

The consensus view of WIPO UDRP panelists concerning the burden of establishing no rights or legitimate interests in respect of the domain name is as follows:

While the overall burden of proof rests with the complainant, panels have recognized that this could result in the often impossible task of proving a negative, requiring information that is often primarily within the knowledge of the respondent. Therefore, a complainant is required to make out an initial prima facie case that the respondent lacks rights or legitimate interests. Once such prima facie case is made, respondent carries the burden of demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such appropriate allegations or evidence, a complainant is generally deemed to have satisfied paragraph 4(a)(ii) of the UDRP.

WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview, 2.0"), Section 2.1.

In the present case Complainant alleges that Respondent has no rights or legitimate interests in respect of the disputed domain names because, inter alia, Respondent is not commonly known by the disputed domain names and has not been granted any license to use Complainant's marks in domain names or otherwise. Complainant has established its prima facie case and Respondent has failed to assert any such rights. Accordingly, the Panel finds that Respondent has no rights or legitimate interests in respect of the disputed domain names.

C. Registered and Used in Bad Faith

Respondent has used the disputed domain names to redirect the Internet user to a web site at which pornographic videos are offered. The Panel finds that such use constitutes bad faith registration and use.

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 disputed domain names <veggiegril.com> and <veggiegrills.com> be transferred to Complainant.

M. Scott Donahey
Sole Panelist
Date: May 9, 2016

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