Complainant is The Hartz Mountain Corporation of Secaucus, New Jersey, United States of America represented by Gottlieb, Rackman & Reisman, PC, United States of America.
Respondent is Aldo L. Jaeger, of Illinois, United States of America.
The disputed domain name <hartzflea.com> (the “Disputed Domain Name”) is registered with GoDaddy.com, Inc.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 8, 2010. On November 9, 2010, the Center transmitted by email to GoDaddy.com, Inc. a request for registrar verification in connection with the disputed domain name. On November 9, 2010, GoDaddy.com, Inc. transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details for the Disputed Domain Name.
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 Respondent of the Complaint, and the proceedings commenced on November 17, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was December 7, 2010. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on December 8, 2010.
The Center appointed Michael A. Albert as the sole panelist in this matter on December 13, 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 is a pet products corporation that was founded in the 1930s and has done business under the name “Hartz” since its formation. Complainant’s business focuses on high-quality pet products, including products providing protection from animal parasites such as ticks and fleas. Complainant has held a United States (“U.S.”) trademark registration for HARTZ since 1965 and has registered the mark HARTZ in at least 66 countries worldwide.
Respondent registered the Disputed Domain Name with GoDaddy.com, Inc. on September 4, 2010. At the time the Complaint was filed, Respondent’s website featured advertisements for parasite protection products for pets that are similar to those offered by Complainant and provided links to Complainant’s competitors’ websites.
Complainant contends that it is a highly respected global corporation that is well-recognized as a leading pet products company. Complainant asserts that by the 1980s, Complainant sold pet products in over 40,000 American and Canadian retail stores. Complainant further contends that it released the first line of veterinary quality flea control products for sale over the counter and that the Hartz brand has been widely associated with anti-flea products since the 1990s.
Complainant also contends that the Hartz brand and Hartz products have been widely advertised in print magazines, on the website “www.hartz.com”, in emails to private consumers and that Complainant has spent millions of dollars on advertising and promoting the Hartz brand worldwide. Complainant further contends that its retail customers also promote the Hartz brand through direct mail and email advertisements.
Complainant contends that the Disputed Domain Name is confusingly similar to the HARTZ mark because it incorporates the entire mark in combination with the generic term “flea,” which identifies one common type of pest on which HARTZ-branded products are used.
Complainant further contends that Respondent has no rights or legitimate interests in the Disputed Domain Name. Specifically, Complainant contends that: (1) Respondent owns no registrations for the term “Hartz” and any such registration would be in contravention of Complainant’s rights; (2) the Disputed Domain Name is not descriptive of any goods or services; (3) the Disputed Domain Name is not generic with respect to any goods or services; (4) Respondent did not use the Disputed Domain Name in a noncommercial sense; (5) the Disputed Domain Name is not the legal name of Respondent nor a name, surname, or other reference by which Respondent is commonly identified; and (6) the Disputed Domain Name is not the geographic location of Respondent’s noncommercial activity or place of business.
Lastly, Complainant contends that Respondent registered the Disputed Domain Name in bad faith and is using the Disputed Domain Name in bad faith by diverting consumers familiar with the Hartz brand to Complainant’s competitors for Respondent’s own commercial gain. Complainant claims that Internet users searching for Hartz brand products have been and will be connected to Respondent’s website, which contains links to websites of Complainant’s competitors offering pet products and services.
Respondent did not reply to Complainant’s contentions.
Pursuant to paragraph 4(a) of the Policy, Complainant must prove each of the following:
(i) the Disputed Domain Name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) 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.
Although Respondent is in default, Complainant is still required to prove the three elements of paragraph 4(a) of the Policy. However, in the absence of exceptional circumstances, when Respondent fails to submit a Response, the Panel may infer that Respondent does not deny Complainant’s factual assertions and contentions. Allianz, Compañía de Seguros y Reaseguros S.A. v. John Michael, WIPO Case No. D2009-0942.
In this case, the Panel takes Complainant’s reasonable assertions as true and makes logical inferences therefrom.
The Disputed Domain Name is not identical to Complainant’s trademark. Rather, the Disputed Domain Name is a combination of Complainant’s trademark HARTZ and the generic term “flea.” Complainant has established that the HARTZ brand has been used extensively with anti-flea pet products since the 1990s.
The use of a generic noun with a trademark is generally insufficient to distinguish the domain name from Complainant’s trademark. Nokia Corporation v. Nokiagirls.com, WIPO Case No. D2000-0102. Here, the Panel finds that the generic term is not only insufficient to distinguish the Disputed Domain Name from Complainant’s trademark, but it actually increases the likelihood of confusion because the term is one that is often associated with the trademark. Ansell Healthcare Products Inc v. Australian Therapeutics Supplies Pty, Ltd., WIPO Case No. D2001-0110. A domain name that incorporates the entirety of the trademark in combination with a term the trademark has been extensively associated with is confusingly similar to the trademark. Caterpillar Inc. v. Roam the Planet, Ltd., WIPO Case No. D2000-0275.
The Panel finds that the Disputed Domain Name <hartzflea.com> is confusingly similar to Complainant’s trademark HARTZ.
Paragraph 4(c) of the Policy provides the following non-exhaustive list of circumstances which would, if proven, be sufficient to demonstrate that Respondent has rights to or legitimate interests in the Disputed Domain Name:
(i) before any notice to Respondent of the dispute, Respondent’s use of, or demonstrable preparations to use, the domain name or a name corresponding to the Disputed Domain Name in connection with a bona fide offering of goods or services; or
(ii) Respondent (as an individual, business, or other organization) has been commonly known by the Disputed Domain Name, even if Respondent has acquired no trademark or service mark rights; or
(iii) Respondent is making a legitimate noncommercial or fair use of the Disputed Domain Name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
There is no evidence that any of the listed circumstances is present in this case. On the contrary, Complainant alleges, and Respondent does not deny, six reasons why Respondent has neither rights nor legitimate interests in the Disputed Domain Name. And, as is discussed further in section D, below, the evidence actually points the Panel toward the conclusion that Respondent is making an illegitimate commercial use of the Disputed Domain Name.
Because none of the listed circumstances was established and Respondent did not offer any evidence that it has rights or legitimate interests in the Disputed Domain Name, the Panel finds that Respondent has no rights or legitimate interests in respect of the Disputed Domain Name.
Paragraph 4(a)(iii) of the Policy requires that Complainant show registration and use of the Disputed Domain Name in bad faith. Paragraph 4(b) of the Policy presents a non-exhaustive list of circumstances considered to demonstrate registration and use in bad faith. The listed circumstances are merely examples, while “the overriding objective of the Policy is to curb the abusive registration of domain names in circumstances where the registrant is seeking to profit from and exploit the trademark of another.” The Jennifer Lopez Foundation v. Jeremiah Tieman, WIPO Case No. D2009-0057 citing Match.com, LP v. Bill Zag and NWLAWS.ORG, WIPO Case No. D2004-0230 (internal quotation marks omitted).
One of the listed circumstances, paragraph 4(b)(iv), is where Respondent attempts to attract, for commercial gain, Internet users to Respondent’s website or other on-line location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or of a product or service on Respondent’s website.
The circumstances here support the inference that Respondent registered the Disputed Domain Name in bad faith. Respondent registered the Disputed Domain Name nearly 80 years after Complainant began doing business under the name “Hartz” and nearly 45 years after HARTZ was registered as a United States trademark. Hartz products are offered in more than 40,000 retail stores as well as over the Internet. Further, the Disputed Domain Name combines the HARTZ trademark with a term closely identified with products sold by Complainant. In the Panel’s view, it would defy common sense to believe Respondent coincidentally selected this combination of terms. Asian World of Martial Arts Inc. v. Texas International Property Associates, WIPO Case No. D2007-1415.
In light of the circumstances and the fact that Respondent presented no evidence, the Panel finds that Respondent registered the Disputed Domain Name in bad faith.
Complainant has provided evidence that at the time the Complaint was filed, Respondent’s website was largely bare, except for advertising links connecting it to other websites, some of which advertise products that compete with Complainant’s. Respondent’s website consisted of brief “previews” of articles supposedly discussing flea and tick treatment, although it is not clear to the Panel whether they have any comprehensible content. (One such “preview” opens: “Many pet owners may be surprised to know the health of the teeth of a dog is just as important a set of everyday problems fetch. Dental animals go beyond bad breath.”) Of greater significance are the advertisements featured on the website, which included links to Complainant’s competitors’ websites. These ads appeared under headlines such as “Kills Fleas and Ticks” and “Cheap Frontline Plus: Free Shipping and Savings 100% Satisfaction.” In sum, Respondent’s website appeared to be no more than a vehicle for the commercial advertising of products that compete with Complainant.
Internet users searching for HARTZ brand flea protection products may very well search for the terms “hartz” and “flea.” Complainant contends, plausibly, that Internet users conducting such searches will be connected to Respondent’s website. Once connected to the site, the Internet users will likely see advertisements for other companies offering the same type of products for which the users were seeking the Complainant’s brand. Respondent thus benefits from the goodwill associated with Complainant’s long-established Hartz brand.
It seems to the Panel that the most probable explanation for Respondent’s advertising use of the Disputed Domain Name is an “intention to mislead Internet users seeking [HARTZ products] and present them with (presumably paid) advertising for other products, consonant with the illustration of bad faith in paragraph 4(b)(iv).” Rolex Watch U.S.A., Inc. v. Vadim Krivitsky, WIPO Case No. D2008-0396. Respondent’s exploitation of the HARTZ trademark thus has constituted a bad-faith use of the Disputed Domain Name.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <hartzflea.com> be transferred to Complainant.
Michael A. Albert
Dated: December 24, 2010
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