Kohlerchocolates.net

The timeline behind kohlerchocolates.net

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.

DECISION Kohler Co. v. shuaiwei xu Claim Number: FA1603001664060 PARTIES Complainant is Kohler Co. (“Complainant”), represented by Paul D. McGrady of Winston & Strawn LLP, Illinois, USA. Respondent is shuaiwei xu (“Respondent”), China. REGISTRAR AND DISPUTED DOMAIN NAME The domain name at issue is <kohlerchocolates.net>, registered with GoDaddy.com, LLC. PANEL The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding. Kenneth L. Port as Panelist. PROCEDURAL HISTORY Complainant submitted a Complaint to the Forum electronically on March 4, 2016; the Forum received payment on March 7, 2016. On March 4, 2016, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <kohlerchocolates.net> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”). On March 7, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 28, 2016 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@kohlerchocolates.net. Also on March 7, 2016, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts. Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default. On March 31, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Kenneth L. Port as Panelist. Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the 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 Complainant has rights in the KOHLER mark through its registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 94,999, registered on January 20, 1914). Respondent’s <kohlerchocolates.net> domain name is confusingly similar to the KOHLER mark because it contains the mark, along with only the additions of the generic word “chocolates” and the generic top-level domain (“gTLD”) “.net.” Respondent is not commonly known by the <kohlerchocolates.net> domain name because the available WHOIS information lists “shuaiwei xu” as Registrant and because Respondent does not have permission to use the KOHLER mark. Respondent fails to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use because the resolving webpage is used to host pay-per-click links and because the domain is offered for sale. Respondent uses the <kohlerchocolates.net> domain name in bad faith because the resolving webpage is used to host pay-per-click links and because the domain is offered for sale. Respondent registered the <kohlerchocolates.net> domain name in bad faith because it did so with actual knowledge of Complainant’s rights in the KOHLER mark, as evidenced by the choice of domain name and the fame of the mark. B. Respondent Respondent failed to submit a Response in this proceeding. The <kohlerchocolates.net> disputed domain name was created on October 28, 2015. FINDINGS The Panel finds that the disputed domain name is confusingly similar to the Complainant’s registered trademark; that the Respondent has no rights or legitimate interests in or to the disputed domain name, and that the Respondent has engaged in bad faith use and registration of the disputed domain name. 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." 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. 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(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”). Identical and/or Confusingly Similar The Panel finds that the disputed domain name is confusingly similar to the Complainant’s registered trademark. The Respondent has no apparent authorization to register the disputed domain name. The disputed domain name is arrived at by merely adding the generic word “chocolates” and the gTLD “.net” to the end of the registered trademark. This is insufficient to distinguish the disputed domain name from the registered trademark. As such, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s registered trademark. Rights or Legitimate Interests The Panel further finds that the Respondent has no rights or legitimate interests in or to the disputed domain name. The available WHOIS information for the <kohlerchocolates.net> disputed domain name lists “shuaiwei xu” as Registrant and provides “343746328@qq.com” as a contact e-mail address. Because this WHOIS information does not identify Respondent as being known by the <kohlerchocolates.net> domain name and because Respondent does not have permission to use the KOHLER mark, the Panel concludes that Respondent is not commonly known by the <kohlerchocolates.net> domain name according to Policy ¶ 4(c)(ii). Respondent further apparently fails to use the <kohlerchocolates.net> domain name to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use because the resolving webpage is used to host pay-per-click links and because the domain is offered for sale. Complainant has provided a screenshot of the resolving domain name, in its Exhibit E, showing links such as “Replacement Faucet,” “Chocolate Cholates,” and “FOR SALE! CLICK FOR DETAILS.” As such, the Panel finds that Respondent fails to use the <kohlerchocolates.net> domain name to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use according to Policy ¶ 4(c)(i) and ¶ 4(c)(iii). Registration and Use in Bad Faith The Panel further finds that Respondent uses the <kohlerchocolates.net> disputed domain name in bad faith because the domain is offered for sale. Complainant has provided a screenshot of the resolving domain name, in its Exhibit E, containing a link displaying the words “FOR SALE! CLICK FOR DETAILS.” As this is the only evidence before the Panel and is unrebutted, the Panel finds that Respondent is attempting to sell the disputed domain name and, as such, is engaged in bad faith use and registration of that disputed domain name. Further, Respondent apparently uses the <kohlerchocolates.net> domain name in bad faith because the resolving webpage is used to host pay-per-click links which disrupt Complainant’s business operations. Complainant has provided a screenshot of the resolving domain name, in its Exhibit E, showing links such as “Replacement Faucet,” “Chocolate Cholates,” and “Kohler Bath Tubs.” The Panel finds that that Respondent uses the <kohlerchocolates.net> domain name in bad faith under Policy ¶ 4(b)(iii) by causing confusion in the minds of Internet users. Complainant claims that Respondent registered the <kohlerchocolates.net> domain name in bad faith because it did so with actual knowledge of Complainant’s rights in the KOHLER mark. Complainant urges that the combination of the KOHLER mark’s fame and Respondent’s choice to register a domain name that incorporates the entire mark is sufficient to show Respondent knew of Complainant’s rights in the mark. The Panel is convinced that, lacking any evidence to the contrary, Respondent proceeded with full knowledge of Complainant’s rights in and to the famous trademark KOHLER. As such, the Panel finds that the Respondent engaged in bad faith use and registration of the disputed domain name. DECISION Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be granted. Accordingly, it is Ordered that the <kohlerchocolates.net> domain name transferred from the Respondent to the Complainant. Kenneth L. Port, Panelist Dated: April 1, 2016 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.