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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

1-800-Flowers.com, Inc, Fresh Intellectual Properties, Inc., Fannie May Confections, Inc., v. G Design

Case No. D2006-0977

 

1. The Parties

The Complainant is 1-800-Flowers.com, Inc, Fresh Intellectual Properties, Inc., and Fannie May Confections, Inc., New York, United States of America, represented by Kilpatrick Stockton, LLP, United States of America.

The Respondent is G Design, Taiyuan, Shanxi, China.

 

2. The Domain Names and Registrar

The disputed domain names <fanneimay.com>, <fannemay.com>, <fannimay.com>, <180flowers.com>, and <18000flower.com> are registered with Go Daddy Software.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 2, 2006. On August 3, 2006, the Center transmitted by email to Go Daddy Software a request for registrar verification in connection with the domain names at issue. On August 5, 2006, Go Daddy Software transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. 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 the Respondent of the Complaint, and the proceedings commenced on August 16, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was September 5, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 6, 2006.

The Center appointed Anna Carabelli as the Sole Panelist in this matter on September 18, 2006, indicating that absent exceptional circumstances the decision would be due by October 2, 2006. 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.

Upon reviewing the Complaint and the Exhibits attached thereto, the Panel issued Procedural Order No. 1, which was notified to the parties on September 28, 2006, requesting the Complainant to submit by October 5, 2006, certain assignment documents which although indicated as included in Exhibit C were not actually attached to the Complaint and additional information and documentary evidence to establish the relation between the Complainant and some of the marks attached to the Complaint as Exhibit C. The Panel also postponed the deadline for decision until October 13, 2006. On October 5, 2006, the Complainant submitted a Response to the Panel Procedural Order No. 1, including the requested information/documentation.

 

4. Factual Background

The Complainant has provided evidence of U.S. Patent and Trademark Office registrations and actual ownership by direct registration, transfer and assignment, as it is applicable, of the following marks (Exhibits D and C, as integrated by the Complainant’s response to Panel Procedural Order No.1):

1) “800 FLOWERS MARKS”:

T.M./S.M.	Reg. No.	Issuance Date
1-800-FLOWERS	1,009,717	April 29, 1975
800-FLOWERS	1,398,787	June 24, 1986
CALL-1-800-FLOWERS	1,761,641	March 30, 1993
1-800- FLOWERS & DESIGN	2,014,298	November 5, 1996
1-800- FLOWERS.COM	2,434,592	March 13, 2001

2) “FANNIE MAY MARKS”:

T.M./S.M.	Reg. No.	Issuance Date
FANNIE MAY KITCHEN FRESH CANDIES	1,407,863	September 2, 1986
I LOVE MY HONEY BUT OH YOU FANNIE MAY!	1,468,535	December 8, 1987
FANNIE MAY	2,121,790	December 16, 1997
FANNY MAY CANDIES CELEBRATED COLLECTION	2,173,898	July 14, 1998

The Complainant operates the websites under the domain names <fanniemay.com> and <1800flowers.com>, which are both registered in the name of the Complainant 1-800-Flowers.Com.Inc.

The Complainant’s website under “www.fanniemay.com” confirm that the complaining companies are related corporations, which have sufficient interest in the Domain Names for them to be joined in this action (Adidas International Marketing BV and adidas-Salomon AG v. Sonia Eguia, WIPO Case No. D2006-0475, Staples, Inc., Staples The Office Superstore, Inc., Staples Contract & Commercial, Inc. v. John Morgan, WIPO Case No. D2004-0537).

The Respondent registered the Domain Names on the following dates:

<18000flower.com>, January 18, 2005;

<180flowers.com>, September 30, 2001;

<fannimay.com>, December 21, 2004;

<fanneimay.com>, February 1, 2005;

<fannemay.com>, February 1, 2005.

The Respondent has been using the Domain Names in connection with redirecting websites which in some cases offer links to other websites belonging to the Complainant’s direct competitors’ (Complaint’s Exhibits G, H, L, M, I) and to sites that may suggest some kind of association between the Respondent’s sites and the Complainant (Complaint’s Exhibits N, O, P).

The Respondent has registered and is the holder of about 1500 domain names, some of which incorporate or are confusingly similar to third parties’ well-known trademarks (Complaint’s Exhibit R).

 

5. Parties’ Contentions

A. Complainant

The Complainant contends that:

- the Domain Names are confusingly similar to the Complainant’s marks because they consist of predictable misspellings or mistypings of the Complainant’s “800 Flowers” and “Fannie May” marks which have become distinctive and extremely well-known through the use made by the Complainant over the years;

- the Respondent has no right or legitimate interest in the Domain Names and is not making any legitimate non commercial or fair use thereof or any use in connection with a bona fide offering of goods and services;

- the Complainant’s and their predecessors’ first use and first registration of their marks pre-date any use the Respondent may have made of any of the Domain Names;

- the Domain Names were registered in bad faith since the Respondent could not have been unaware of the Complainant’s marks when he registered the Domain Names;

- the Respondent’s bad faith in connection with the registration of the Domain Names is also supported by the fact that the he has intentionally registered several domain names that are similar but slightly misspelled variations of long use and well-known third parties’ trademarks;

- the Domain Names are being used in bath faith, in connection with portal or search “click through” sites from which the Respondent receives revenues from third parties whose websites are accessed via the Respondent’s websites, and that Respondent intentionally attempts to attract for commercial gain Internet users who are looking for the Complainant’s goods and services.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

 

6. Discussion and Findings

A. Identical or Confusingly Similar

The Panel finds that the Complainant has established rights in the “800 Flowers” and “Fannie May” marks listed in paragraph 4 above, by submitting various U.S. Patent and Trademark registrations and Assignments (Complainant’s Exhibits D and C, as integrated by the Complainant’s response to Panel Procedural Order No. 1).

The Panel also determines that Respondent’s registered Domain Names are confusingly similar to the point of being nearly identical to Complainant’s’ marks as the differences between them consist of typical misspellings/mistypings of Complainant’s marks, namely:

(a) inversion of two letters: <fanneimay.com>;

(b) one letter/number deletion: <fannemay.com>; <fannimay.com>; <180flowers.com>;

(c) adding of a “0” and deletion of letter “s”: <18000flower.com>.

Previous Panel decisions are consistent in considering such misspellings as confusingly similar to the relevant misspelled Trade and Service mark. (See e.g.: Media West- GRS, Inc., Media West – MNC, Inc., Gannett Pacific Corporation, Gannet Co., Inc., Gannett River States Publishing Corp., Guam Publications, Incorporated v. Moniker Privacy Services/Forum LLC/Registrant (187640) info@fashionid.com, WIPO Case No. D2006-0478, Kelley Blue Book Company, Inc. v. Nikolay Golovin aka Buy-movie.net, WIPO Case No. D2005-0837, Easy Group IP Licensing Limited v. John Sansone, WIPO Case No. D2004-0763, Staples, Inc., Staples The Office Superstore, Inc., Staples Contract & Commercial, Inc. v. John Morgan, WIPO Case No. D2004-0537).

In the light of the above, the Panel finds that the Complainant has met the requirement of paragraph 4(a)(i) of the Policy.

 

Источник информации: https://xn--c1ad2agd.xn--p1ai/intlaw/udrp/2006/d2006-0977.html

 

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