The Complainant is Jelly Belly Candy Company, United States of America (the “United States”), represented by Stubbs Alderton Markiles, LLP, United States.
The Respondent is Contact Privacy Inc. Customer 0155543257, Canada / NAME REDACTED, United States1.
The disputed domain name <jellybeelly.com> is registered with Tucows Inc. (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 30, 2019. On August 30, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 30, 2019, the Registrar 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 the Complainant on September 4, 2019, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on September 4, 2019.
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 the Rules, paragraphs 2 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on September 9, 2019. In accordance with the Rules, paragraph 5, the due date for Response was September 29, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 30, 2019.
The Center appointed Nicolas Ulmer as the sole panelist in this matter on October 7, 2019. 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.
The Complainant submits and lists that it has over 100 Unites States trademarks featuring the words “Jelly Belly” in various classes and configurations, and that the name is famous both in the United States and internationally. In particular, the Complainant submits and documents that it is the owner of the trademark JELLY BELLY for use on jelly bean candies; a United States trademark, registration N°1132333first registered on April 1, 1980.
The disputed domain name was registered on August 26, 2019. It resolves to an inactive page and appears, according to the Complaint, to have been used for fraudulent email scheme.
Little is known of the Respondent, who has not answered the Complaint.
The Complainant asserts that the disputed domain name is confusingly similar to its trademark, and this notwithstanding the addition of an extra “e” in the name. The Complainant further asserts that the Respondent has not made any bona fide use or preparation for such use of the disputed domain name, but rather is using the disputed domain name to deceive the Complainant’s customers. In light of this bad faith registration and use the Complainant asks that the disputed domain name be transferred to it.
The Respondent did not reply to the Complainant’s contentions.
The disputed domain name comprises the Complainant’s trademark JELLY BELLY with a slight misspelling—the addition of an “e” so as to read “jellybeelly” rather than the trademarked “jellybelly”. It is long- established in UDRP case law that a slight misspelling or additional letter resulting in a confusingly similar approximation of a trademark can readily be found to be confusingly similar within the meaning of the Policy. See, e.g., Estée Lauder Inc. v. estelauder.com, estelauder.net and Jeff Hanna, WIPO Case No. D2000-0869. In the instant case the disputed domain name’s addition of an “e” does not prevent the confusing similarity to the Complainant’s trademark.
Paragraph 4(a)(i) of the Policy is accordingly proven by the Complainant.
The Complainant has affirmed that it has no knowledge of any right of the Respondent to use its trademark in the disputed domain name, or otherwise. It is, moreover, obvious that the Respondent is not known by the name “Jellybeelly” or some variation thereof.
It clear in UDRP case law and jurisprudence that a complainant needs to establish at least a prima facie case that the respondent has no rights or legitimate interests in respect of the disputed domain name. See Section 2.1 of WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”); accord, Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455. Where such a prima facie case is made, the burden shifts to the respondent to demonstrate its rights or legitimate interests in the disputed domain name. If the respondent fails to do so, the complainant is generally deemed to have satisfied paragraph 4(a)(ii) of the Policy. See also, Meizu Technology Co., Ltd. v. “osama bin laden”, WIPO Case No. DCO2014-0002; H & M Hennes & Mauritz AB v. Simon Maufe, Akinsaya Odunayo Emmanuel and Nelson Rivaldo, WIPO Case No. D2014-0225.
The Complainant has here established at least such a prima facie case, and the Respondent has failed to answer the Complaint. Further, there is here nothing in the case file that would rebut or contradict the Complainant’s assertions as to the Respondent’s absence of any rights or legitimate interest in the disputed domain name. It can therefore be affirmed that the Complainant has met its burden of proof under paragraph 4 (a)(ii) of the Policy
The disputed domain name was registered in 2019 with a slight variation in spelling from the Complainant’s long-established and well-known trademark; this cannot have been by chance or serendipity, and is clearly indicative of bad faith.
The bad faith use of the disputed domain name is established, inter alia, by the evidence that the Complainant submits that, on the very date of the disputed domain name’s registration a person identifying itself as [Name Redacted] (an accounts receivable manager of the Complainant), sent emails to the Complainant’s customers requesting updated vendor forms and financial information. The sender of the emails identified its email with the disputed domain name <jellybeely.com>.
The Complainant has, accordingly, met its burden under paragraph 4(a)(iii) of the Policy.
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, <jellybeelly.com> be transferred to the Complainant.
Date: October 21, 2019
1 “The Respondent appears to have used the name of a third party when registering the disputed domain name. In light of the potential identity theft, the Panel has redacted the Respondent’s name from this decision. However, the Panel has attached as Annex 1 to this decision an instruction to the Registrar regarding transfer of the disputed domain name, which includes the name of the Respondent. The Panel has authorized the Center to transmit Annex 1 to the Registrar as part of the order in this proceeding, and has indicated Annex 1 to this decision shall not be published due to the exceptional circumstances of this case. See Banco Bradesco S.A. v. FAST-12785241 Attn. Bradescourgente.net / Name Redacted, WIPO Case No. D2009-1788.”
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