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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Flowers Bakeries Brands, Inc. v. Virtual Sky

Case No. D2006-1545

 

1. The Parties

Complainant is Flowers Bakeries Brands, Inc., of Thomasvile, Georgia, United States of America, represented by Kilpatrick Stockton, LLP, United States of America.

The Respondent is Virtual Sky, of Grand Cayman, United Kingdom of Great Britain and Northern Ireland.

 

2. The Domain Name and Registrar

The disputed domain name <flowerfoods.com> is registered with Moniker Online Services, LLC.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 5, 2006. On December 7, 2006, the Center transmitted by email to Moniker Online Services, LLC a request for registrar verification in connection with the domain name at issue. On December 9, 2006, Moniker Online Services, LLC 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 December 20, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was January 9, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 12, 2007.

The Center appointed Desmond J. Ryan as the sole panelist in this matter on January 23, 2007. 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.

 

4. Factual Background

Complainant is the registered proprietors of US trademark registration No. 3181008 FLOWERS FOODS and No. 3181002 FLOWERS FOODS and design each registered in respect of “bakery products”. Each was filed March 10, 2006, claiming first use in commerce from September 2003.

Complainant claims to be a subsidiary of Flowers Foods Inc, which was incorporated in the State of Georgia in October 2000, and to be affiliated with over thirty seven other companies “within the Flowers Foods corporate structure”. In the Complaint the words “Flowers” and “Complainant” appear to be used to refer both to Complainant alone and to the Flowers group of companies.

The disputed domain name was registered on December 25, 2003.

No response was filed and there is no information as to Respondent save that its address is a post office box in George Town, Grand Cayman.

 

5. Parties’ Contentions

A. Complainant

Complainant contends that:

- it is a leading producer and marketer of packaged bakery foods with a turnover in 2005 of USD 1.72 billion;

- the disputed domain name is confusingly similar to its FLOWERS FOODS trademark differing only by the omission of the letter “s”;

- Respondent has no rights or legitimate interests with respect to the domain name which was registered suspiciously soon after Complainant first used its FLOWERS FOODS trademark in September 2003, and well after the commencement of the use of the company name Flowers Foods in 2000;

- the disputed domain name was registered and has been used in bad faith following widespread use and promotion of the FLOWERS FOODS trademark in the United States of America. The Respondent’s website to which the disputed domain name resolves is a portal site which includes links to “Flowers Food” and “Flowers BakeryvLocations”. Respondent does not have any affiliation, association or connection with the Complainant and is deliberately using an imitation of the FLOWERS FOODS trademark to increase hits to Respondent’s website and increase the revenue generated thereby.

B. Respondent

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

 

6. Discussion and Findings

A. Identical or Confusingly Similar Mark

Complainant is the owner of US registered trademarks comprising the words “Flowers Foods”.

The disputed domain name <flowerfoods.com> differs from Complainant’s FLOWERS FOODS trademark only by the omission of the “s” from the word “flowers”, the conflation of the words “flower” and “foods” and the addition of the “.com” domain denominator. In substance therefore the only difference between the disputed domain name and the Complainant’s trademark is the omission of the letter “s” from the word “flower”.

The Panel therefore finds that the domain name is confusingly similar to a trademark in which the Complainant has rights.

B. Rights or Legitimate Interests

Complainant asserts that Respondent has no connection or affiliation with Complainant. There is no apparent relationship between the domain name and Respondent’s name and the use of the domain name to point to a portal site indicates that the use of the domain name by Respondent is commercial.

There is no evidence that Respondent received notice of dispute in relation to the domain name prior to the service on it of a copy of the Complaint. Clearly Respondent’s registration and use of the domain name predated that notice. However, for Respondent to avail itself of the defence provided by paragraph 4(c)(i) of the Policy the use has to be in connection with a bona fide offering of goods or services. Use of a domain name which is confusingly similar to another’s trademark for the purpose of attracting internet users to Respondent’s portal site is not a bona fide offering of goods or services with reference to the domain name – see for example Carfax, Inc. D/B/A Carfax v. Setyo Djoenaedi & Associates, WIPO Case No. D2001-0986 and Madonna Ciccone p/k/a Madonna v. Dan Parisi and “Madonna.com”, WIPO Case No. D2000-0847.

Respondent had the opportunity to demonstrate that it had rights or legitimate interests but failed to do so.

The Panel therefore decides that Respondent has no legitimate rights or interests in the domain name.

C. Registered and Used in Bad Faith

Respondent registered the domain name some three years after Respondent’s adaption of the name “Flowers Foods” and three months after the commencement of the use of the FLOWERS FOODS trademark in commerce. Prior to the registration of the domain name the evidence indicates Complainant and/or its affiliates had expended over seven million dollars in advertising and marketing. Complainant contends, and the Panel accepts, that such promotion would establish a high degree of goodwill in the FLOWERS FOODS trademark. The domain name is currently being used to point to a portal site containing a search engine and links typically associated with the generation of click-through revenue. There is therefore a high probability that Respondent knew of Complainant’s mark and its reputation and deliberately adopted the domain name and is using it for the purpose of attracting Internet users to its website and to thereby generate income on a per click basis from persons accessing the site.

Respondent had the opportunity to respond to the Complaint but failed to do so.

The Panel concludes in the circumstances that Respondent registered and is using the domain name in bad faith.

 

7. Decision

For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name<flowerfoods.com> be transferred to the Complainant.

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Desmond J. Ryan AM
Sole Panelist

Dated: February 5, 2007