WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
American Recreation Products, LLC v. Domains By Proxy, LLC, Roman Demchenko, and Kelty Packs LLC
Case No. D2013-1474
1. The Parties
The Complainant is American Recreation Products of Chesterfield, Missouri, United States of America (“U.S.”) represented by Innis Law Group LLC, U.S.
The Respondent is Domains By Proxy, LLC of Scottsdale, Arizona, U.S., Roman Demchenko, of Krasnodar, Russian Federation, and Kelty Packs LLC of Rochester, New York, U.S.
2. The Domain Name and Registrar
The disputed domain name <keltypacks.net> is registered with GoDaddy.com, LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 20, 2013. On August 21, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On the same day, the Registrar transmitted its verification response to the Center by email 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 August 23, 2013 providing the registrant and contact information disclosed by the Registrar and invited the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on August 27, 2013.
The Center verified that the Complaint together with the amended 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 paragraphs 2(a) and 4(a) of the Rules, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on August 30, 2013. In accordance with paragraph 5(a) of the Rules, the due date for Response was September 19, 2013. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 20, 2013.
The Center appointed Adam Samuel as the sole panelist in this matter on October 6, 2013. 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 paragraph 7 of the Rules.
4. Factual Background
The Complainant manufactures and sells camping and outdoor accessories and equipment such as backpacks, tents and sleeping bags. It is the owner of a large number of trademark registrations for the name KELTY, including a U.S. trademark registration number 1059258, which was registered on February 15, 1977. The disputed domain name was registered on August 25, 2011.
5. Parties’ Contentions
This section contains the Complainant’s submissions with which the Panel may or may not agree.
The Complainant has a number of trademark registrations for its well-known brand, KELTY. Its backpacking products offered under that mark have long been known as “Kelty Packs”. The disputed domain name incorporates the Complainant’s KELTY mark, which is the most prominent part of the disputed domain name. The inclusion of “packs” only increases the confusing similarity of the disputed domain name since the primary product sold using the KELTY mark is backpacks.
The Complainant has not licensed or otherwise permitted the Respondent to use its KELTY mark or register the disputed domain name. The Respondent is using the disputed domain name to engage in fraudulent Internet recruiting and marketing activities. The Respondent has contacted consumers and others regarding potential employment opportunities and made false statements to consumers that the Respondent has located the consumer through the authorized Career Builder Services. The Respondent has not replied to a cease and desist letter and numerous similar communications or a federal lawsuit filed by the Complainant, resulting in judgment being entered by default. The Respondent gives a business address on the website to which the disputed domain name resolves which does not exist.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Under the Policy, the Complainant must prove that:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which it 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 Similar
The disputed domain name consists of the Complainant’s trademark, the word “packs” and the generic Top-Level Domain (“gTLD”) “.net”. The word “packs” denotes one of the Complainant’s most popular products, backpacks, and the gTLD is necessary to complete the disputed domain name. The addition of “packs.net”, as a generic term describing the Complainant’s products and the necessary gTLD, does not render the disputed domain name any less confusingly similar to the Complainant’s trademarks. Accordingly, the Panel concludes that the disputed domain name is confusingly similar to the Complainant’s trademark.
B. Rights or Legitimate Interests
The Respondent is not called “keltypacks” or anything similar and does not appear to engage in a legitimate trade under that or any related name. There is no evidence that the Complainant has ever authorized the Respondent to use its trademarks. For these reasons, and in the absence of any response on this point, notably one contradicting the Complainant’s claim that the Respondent has never been connected to it in any way, the Panel concludes that the Respondent has no rights or legitimate interests in respect of the disputed domain name.
C. Registered and Used in Bad Faith
KELTY is a trademark with no independent meaning through which the Complainant sells backpacks. It is inconceivable that the Respondent did not have the Complainant’s trademark in mind when registering the disputed domain name.
In this Panel’s view, it is impossible, at least without a full Response to the Complaint, to identify any reason why the Respondent registered the disputed domain name except to benefit in some way from the Complainant’s trademark. The Respondent’s motive in registering the disputed domain name was either to disrupt the Complainant’s relationship with its customers or potential customers, attempt to attract Internet users for potential gain or persuade the Complainant to buy the disputed domain name for an amount in excess of the Respondent’s out-of-pocket expenses. These all constitute evidence of registration and use in bad faith. It is unnecessary in the circumstances to deal with the other points raised by the Complainant.
For these reasons, the Panel concludes that the disputed domain name was registered and is being used in bad faith.
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 name <keltypacks.net> be transferred to the Complainant.
Date: October 18, 2013