Koolaidjammers.com

The timeline behind koolaidjammers.com

Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.

Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.

NATIONAL ARBITRATION FORUM DECISION Kraft Foods Holdings, Inc. v. LaPorte Holdings c/o Admin Claim Number: FA0503000449415 PARTIES Complainant is Kraft Foods Holdings, Inc. (“Complainant”), Three Lakes Drive, NF 579, Northfield, IL 60093. Respondent is LaPorte Holdings c/o Admin (“Respondent”), 5482 Wilshire Blvd., #1928, Los Angeles, CA 90036. REGISTRAR AND DISPUTED DOMAIN NAME The domain name at issue is <koolaidjammers.com>, registered with Nameking.com, Inc. PANEL The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding. Louis E. Condon as Panelist. PROCEDURAL HISTORY Complainant submitted a Complaint to the National Arbitration Forum electronically on March 30, 2005; the National Arbitration Forum received a hard copy of the Complaint on April 6, 2005. On April 8, 2005, Nameking.com, Inc. confirmed by e-mail to the National Arbitration Forum that the domain name <koolaidjammers.com> is registered with Nameking.com, Inc. and that Respondent is the current registrant of the name. Nameking.com, Inc. has verified that Respondent is bound by the Nameking.com, Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”). On April 14, 2005, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of May 4, 2005 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts, and to postmaster@koolaidjammers.com by e-mail. Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default. On May 9, 2005, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Louis E. Condon as Panelist. Having reviewed the communications records, the Administrative Panel (the “Panel”) finds that the National Arbitration Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) “to employ reasonably available means calculated to achieve actual notice to Respondent.” Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration Forum’s Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any Response from Respondent. RELIEF SOUGHT Complainant requests that the domain name be transferred from Respondent to Complainant. PARTIES’ CONTENTIONS A. Complainant makes the following assertions: 1. Respondent’s <koolaidjammers.com> domain name is identical to Complainant’s KOOL-AID JAMMERS mark. 2. Respondent does not have any rights or legitimate interests in the <koolaidjammers.com> domain name. 3. Respondent registered and used the <koolaidjammers.com> domain name in bad faith. B. Respondent failed to submit a response in this proceeding. FINDINGS Complainant has continuously and exclusively used the KOOL-AID JAMMERS mark in connection with powders and concentrates for making soft drinks since September 2001. Complainant has affixed the KOOL-AID JAMMERS mark on packaging for products that it sells under the mark. Complainant has expended considerable sums of money developing and promoting its soft drinks under its KOOL-AID and KOOL-AID JAMMERS marks. As a result, Complainant has acquired substantial goodwill in its marks. Complainant also holds numerous trademark registrations that incorporate the KOOL-AID mark and has used that mark continuously since at least as early as April 11, 1940. Respondent registered the <koolaidjammers.com> domain name on February 14, 2004. The domain name does not resolve to any active website. Respondent is not licensed to use Complainant’s mark. Numerous other panels have found that Respondent has prevented trademark holders from reflecting their marks in corresponding domain names. DISCUSSION Paragraph 15(a) of the Rules instructs this Panel to “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.” In view of Respondent’s failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant’s undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred: (1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and (2) Respondent has no rights or legitimate interests in respect of the domain name; and (3) the domain name has been registered and is being used in bad faith. Identical and/or Confusingly Similar Complainant has established that it has acquired rights in the KOOL-AID JAMMERS mark through use of the mark in connection with its products since 2001. The Policy recognizes that complainants may establish rights in a mark either through registration with a government authority or through use of the mark in commerce. As a result of Complainant’s continuous and exclusive use of the KOOL-AID JAMMERS mark in commerce, the Panel finds that the mark has become a distinctive source identifier for Complainant’s products. See SeekAmerica Networks Inc. v. Masood, D2000-0131 (WIPO Apr. 13, 2000) (finding that the Rules do not require that a complainant’s trademark or service mark be registered by a government authority or agency for such rights to exist); see also British Broad. Corp. v. Renteria, D2000-0050 (WIPO Mar. 23, 2000) (noting that the Policy “does not distinguish between registered and unregistered trademarks and service marks in the context of abusive registration of domain names” and applying the Policy to “unregistered trademarks and service marks”); see also Tuxedos By Rose v. Nunez, FA 95248 (Nat. Arb. Forum Aug. 17, 2000) (finding common law rights in a mark where its use was continuous and ongoing, and secondary meaning was established). The <koolaidjammers.com> domain name is identical to Complainant’s KOOL-AID JAMMERS mark. The domain name fully incorporates the mark while simply removing a hyphen and a space and adding the “.com” generic top-level domain (“gTLD”). The removal of a hyphen and a space and the addition of a gTLD do not distinguish the domain name from Complainant’s mark. Thus, the Panel finds that the domain name is identical to Complainant’s mark under Policy ¶ 4(a)(i). See Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar); see also Hannover Ruckversicherungs-AG v. Ryu, FA 102724 (Nat. Arb. Forum Jan. 7, 2001) (finding <hannoverre.com> to be identical to HANNOVER RE, “as spaces are impermissible in domain names and a generic top-level domain such as ‘.com’ or ‘.net’ is required in domain names”); see also Chernow Communications, Inc. v. Kimball, D2000-0119 (WIPO May 18, 2000) (“[T]he use or absence of punctuation marks, such as hyphens, does not alter the fact that a name is identical to a mark.”). The Panel finds that Policy ¶ 4(a)(i) has been satisfied. Rights or Legitimate Interests Respondent has failed to submit a response in this proceeding. In the absence of a response, the Panel accepts as true all reasonable allegations contained in the Complaint unless clearly contradicted by the evidence. Complainant alleges that Respondent lacks rights and legitimate interests in the <koolaidjammers.com> domain name. Neither Respondent nor the evidence contradicts this allegation. Furthermore, because Respondent failed to submit a response, Respondent has not proposed any set of circumstances that could substantiate its rights or legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii). See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that a respondent’s failure to respond allows all reasonable inferences of fact in the allegations of a complaint to be deemed true); see also Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that a complainant’s allegations are true unless clearly contradicted by the evidence); see also Parfums Christian Dior v. QTR Corp., D2000-0023 (WIPO Mar. 9, 2000) (finding that by not submitting a response, the respondent failed to invoke any circumstance which could demonstrate any rights or legitimate interests in the domain name). Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services under Policy ¶ 4(c)(i) or making a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii) because the domain name does not resolve to any active website. Moreover, no evidence before the Panel shows that Respondent has made any use of the disputed domain name since it was registered fifteen months ago. The Panel finds that, under these circumstances, Policy ¶¶ 4(c)(i) and 4(c)(iii) are inapplicable to Respondent. See Pharmacia & Upjohn AB v. Romero, D2000-1273 (WIPO Nov. 13, 2000) (finding no rights or legitimate interests where the respondent failed to submit a response to the complaint and had made no use of the domain name in question); see also Ritz-Carlton Hotel v. Club Car Executive, D2000-0611 (WIPO Sept. 18, 2000) (finding that prior to any notice of the dispute, the respondent had not used the domain names in connection with any type of bona fide offering of goods and services); see also Am. Home Prod. Corp. v. Malgioglio, D2000-1602 (WIPO Feb. 19, 2001) (finding no rights or legitimate interests in the domain name <solgarvitamins.com> where the respondent merely passively held the domain name); see also Nike, Inc. v. Crystal Int’l, D2001-0102 (WIPO Mar. 19, 2001) (finding no rights or legitimate interests where the respondent made no use of the infringing domain names). No evidence before the Panel suggests that Respondent is commonly known by the <koolaidjammers.com> domain name. The domain name’s WHOIS information indicates that the registrant of the disputed domain name is known as “LaPorte Holdings LLC c/o Admin” and is not known by the second-level domain that is identical to Complainant’s KOOL-AID JAMMERS mark. Moreover, Respondent is not licensed to use Complainant’s mark. Thus, Respondent lacks rights and legitimate interests in the domain name under Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in the respondent’s WHOIS information implies that the respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also RMO, Inc. v. Burbridge, FA 96949 (Nat. Arb. Forum May 16, 2001) (interpreting Policy ¶ 4(c)(ii) “to require a showing that one has been commonly known by the domain name prior to registration of the domain name to prevail”); see also Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interests where the respondent was not commonly known by the mark and never applied for a license or permission from the complainant to use the trademarked name). The Panel finds that Policy ¶ 4(a)(ii) has been satisfied. Registration and Use in Bad Faith Respondent has registered a domain name that is identical to Complainant’s KOOL-AID JAMMERS mark. Complainant cites several other cases where Respondent registered domain names identical to trademarks belonging to others. The Panel finds that Respondent’s registration of the <koolaidjammers.com> domain name prevents Complainant from reflecting its KOOL-AID JAMMERS mark in a corresponding domain name. Furthermore, the Panel finds that Respondent has engaged in a pattern of such activity. Respondent’s pattern of preventing numerous trademark owners from reflecting their marks in corresponding domain names evidences that it registered and used the disputed domain name in bad faith under Policy ¶ 4(b)(ii). See Armstrong Holdings, Inc. v. JAZ Assoc., FA 95234 (Nat. Arb. Forum Aug. 17, 2000) (finding that the respondent violated Policy ¶ 4(b)(ii) by registering multiple domain names that infringe upon others’ famous and registered trademarks); see also Nabisco Brands Co. v. Patron Group, D2000-0032 (WIPO Feb. 23, 2000) (holding that registration of numerous domain names is one factor in determining registration and use in bad faith). While each of the four circumstances listed under Policy ¶ 4(b), if proven, evidences bad faith use and registration of the domain name, additional factors can also be used to support findings of bad faith. See Twentieth Century Fox Film Corp. v. Risser, FA 93761 (Nat. Arb. Forum May 18, 2000) (finding that in determining if a domain name has been registered in bad faith, the Panel must look at the “totality of circumstances”); see also Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (“[T]he examples [of bad faith] in Paragraph 4(b) are intended to be illustrative, rather than exclusive.”). Respondent has made no use of the <koolaidjammers.com> domain name, which is identical to Complainant’s mark, since the domain name was registered more than a year ago. The Panel finds that Respondent has engaged in passive holding, which evidences that Respondent registered and used the domain name in bad faith under Policy ¶ 4(a)(iii). See Phat Fashions v. Kruger, FA 96193 (Nat. Arb. Forum Dec. 29, 2000) (finding bad faith under Policy ¶ 4(b)(iv) even though the respondent has not used the domain name because “it makes no sense whatever to wait until it actually ‘uses’ the name, when inevitably, when there is such use, it will create the confusion described in the Policy”); see also Caravan Club v. Mrgsale, FA 95314 (Nat. Arb. Forum Aug. 30, 2000) (finding that the respondent made no use of the domain name or website that connects with the domain name, and that passive holding of a domain name permits an inference of registration and use in bad faith). The Panel finds that Policy ¶ 4(a)(iii) has been satisfied. DECISION Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief should be GRANTED. Accordingly, it is Ordered that the <koolaidjammers.com> domain name be TRANSFERRED from Respondent to Complainant. Louis E. Condon, Panelist Dated: May 19, 2005 Click Here to return to the main Domain Decisions Page. Click Here to return to our Home Page

Source of record: FORUM . Reproduced for research; FORUM is the authoritative source.