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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Kentucky Fried Chicken Corporation v. Max Marketing

Case No. D2000-1674

 

1. The Parties

The Complainant is: Kentucky Fried Chicken Corporation, a Delaware Corporation whose address is 1441 Gardiner Lane, Louisville, Kentucky 40213, U.S.A. Complainant is represented by: Ana C. Ward, Esq., Tricon Global Restaurants, Inc., 14841 Dallas Parkway, 3^rd Floor, Dallas, Texas 75240, U.S.A.

The Respondent is: Max Marketing, 1232 Bradbury, Troy, Michigan 48098, U.S.A.

 

2. The Domain Name and Registrar

The domain name in dispute is <kentuckyfriedchicken.net>. The registrar for the disputed name is Register.com, Inc., 575 8^th Avenue, 11^th Floor, New York, New York 10018.

 

3. Procedural History

This dispute is to be resolved in accordance with the Uniform Policy for Domain Name Dispute Resolution (the Policy) and Rules (the Rules) approved by the Internet Corporation for Assigned Names and Numbers (ICANN) on October 24, 1999, and the World Intellectual Property Organization Arbitration and Mediation Center's Supplemental Rules for Uniform Domain Name Dispute Resolution (the Center, the Supplemental Rules).

The Complaint was filed on December 7, 2000. On December 24, 2000, the Center requested that the registrar, Register.com, Inc. check and report back on the registrant for the domain name <kentuckyfriedchicken.com>. On December 28, 2000 the registrar reported the registrant was the Respondent, Max Marketing.

On December 31, 2000 the Center forwarded a copy of the Complaint to Respondent by registered mail and e-mail and this proceeding officially began. Respondent did not file a response per Rule 5 and was declared in default on January 24, 2001.

The Administrative Panel submitted a Declaration of Impartiality and Independence on January 30, 2001 and the Center proceeded to appoint the Panel on February 2, 2001. The Panel finds the Center has adhered to the Policy and the Rules in administering this proceeding.

This Decision is due by February 15, 2001.

 

4. Factual Background

Complainant first used the Kentucky Fried Chicken mark in 1950, and currently licenses the name to a chain of thousands of restaurants around the world. The Respondent registered the disputed domain name on May 22, 1999. Complainant wrote to Respondent on April 11, 2000, June 1, 2000 and June 11, 2000 alleging Complainant's trademark rights and demanding that Respondent "permanently cease" using the disputed domain name (Complaint Annexes D, E and F). The Respondent never replied to the Complainant. As a result, the Complainant has initiated this proceeding and seeks transfer of the disputed domain name <kentuckyfriedchicken.net>.

 

5. The Parties' Contentions

Complainant's Contentions:

- Complainant owns two United States federal and 220 registrations worldwide for the service mark "Kentucky Fried Chicken".

- Respondent's disputed domain name "kentuckyfriedchicken.net" is identical and confusingly similar to Complainant's registered trademark Kentucky Fried Chicken.

- Respondent has no rights or legitimate interests in respect of the domain name.

- Respondent registered the domain name in bad faith.

- The disputed domain name should be transferred to Complainant.

Respondent is in default and did not file a response in this proceeding.

 

6. Discussion and Findings

In order for Complainant to prevail and have the disputed domain name <kentuckyfriedchicken> transferred to itself, Complainant must prove the following (the Policy, para 4(a)(i-iii):

- the domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

- the Respondent has no rights or legitimate interests in respect of the domain name; and

- the domain name was registered and is being used in bad faith

Identical or Confusingly Similar

The Complainant has provided the Panel with copies of its Kentucky Fried Chicken service mark (restaurant services) registration on the principal register of the United States of America Patent and Trademark Office: service mark no. 815,167 registered on September 13, 1966 with claimed first use in December, 1950 and subsequent renewals (Complaint, Annex C).

The Panel finds that the disputed domain name, <kentuckyfriedchicken.net>, is identical to Complainant's service marks.

Legitimate Rights or Interests

The Complainant states it never authorized the Respondent to use its trade and service marks. The Respondent is in default and thus has not tried to demonstrate any rights or interests in the disputed domain name per the Policy 4(c). Under the premises, the Panel finds the Respondent has no rights or interests in the disputed domain name.

Registered and Used in Bad Faith

The Panel is well aware it is not easy for the Complainant to show exactly what the Respondent is about when, as here, the Respondent acknowledges no communication sent to it and does not participate in the ICANN proceeding. Nonetheless, the Rules (nos. 10 and 15) allow the Panel to draw the inferences it deems appropriate when all relevant facts are not to hand. The Complainant's trademark is world famous, and certainly famous in the United States where both Complainant and Respondent reside. Respondent can not have been unaware of Complainant's trademark rights when it registered the disputed domain name.

The Panel believes there are at least three grounds under which Respondent registered and was using the disputed domain name in bad faith under the Policy. First, the Respondent was in bad faith because it registered the domain name well aware it had no rights or interests in the name (see for example Veuve Cliquot Ponsardin, Maison Fondee en 1772 v. The Polygenix Group Co., WIPO Case D2000-0163, May 1, 2000). Second, as the Panel found in a similar case involving the Respondent Max Marketing , the Panel here finds the Respondent was in bad faith since it knowingly violated the registration agreement it concluded with the registrar (Noddle Time, Inc. v. Max Marketing, eResolution Case AF-0100, February 3, 2000). And lastly, the Respondent was using the name in bad faith because it registered and warehoused a famous domain name without making any apparent use of it (Georgia Gulf Corporation v. The Ross Group, WIPO Case No. D2000-0218, June 14, 2000).

 

7. Decision

The Panel's Decision is that the disputed domain name is identical to Complainant's service mark. Also, the Respondent has no legitimate rights or interests in the name and registered and was using it in bad faith. Pursuant to the Policy para 4(i) and Rule 15, this Panel orders that the disputed domain name <kentuckyfriedchicken.net> be transferred from the Respondent, Max Marketing, to the Complainant, Kentucky Fried Chicken Corporation.

 

 

Dennis A. Foster
Sole Panelist

Date: February 14, 2001