v.
Spotted Cow Media
[Indexed as: Hormel Foods v. Spotted Cow Media]
[Indexed as: KIDSKITCHEN.COM]
National Arbitration Forum
Administrative Panel Decision
Case No.: FA0006000095067
Commenced: 29 June, 2000
Judgment: 31 July, 2000
Presiding Panelist: Judge Richard B. Wickersham, (Ret.)
Domain name - Domain name dispute resolution policy - Service mark - Trademark - Identical - Confusingly similar - Bad faith Source Sponsorship Affiliation Endorsement Attract for Commercial Gain Website uses same colours, typestyles, themes.
Complainant, Hormel Foods Corporation, holds the trademark Kids Kitchen. The mark is used in connection with various foods and a childrens reading club program.
Complainant contends that Respondents use of the domain name is confusing not only because it is identical but also because the content of its website uses colours, typestyles, and a childrens cooking theme virtually identical to that used by complainant and also uses Complainants identical Mark as a service mark.
In an attempt to settle the matter Respondent, Spotted Cow Media, added a disclaimer to its site stating, kidskitchen.com is in no way affiliated with Hormel Foods Corporation.
Held, Name Transferred to Complainant.
Respondent's use of the domain name is confusing not only because it is identical but also because the content of its website uses colors, typestyles, and a children's cooking theme virtually identical of that used by Complainant, and also uses Complainant's identical Mark as a service mark.
Respondent has no rights or legitimate interests in the domain name at issue. Respondent owns no federal or state trademark registrations identical or similar to Complainant's Mark. Further, Respondent is not commonly known by the domain name.
Respondents registration of the domain name is in bad faith as Internet
users are misleadingly diverted to Respondents site for the purpose of
financial gain. By registering and using the domain name, Respondent intentionally
attempts to attract, for commercial gain, Internet users to its website
by creating a likelihood of confusion with Complainant's Mark as to the
source, sponsorship, affiliation or endorsement of its site and service.
Policies referred to
Uniform Domain Name Dispute Resolution Policy, adopted August 26, 1999
Panel Decision referred to
--
Wickersham, Panelist: -
1. The Parties
The Complainant is Hormel Foods Corporation and Hormel Foods, LLC, Austin, MN, USA ("Complainant"). The Respondent is Spotted Cow Media, Las Vegas, NV, USA ("Respondent").
2. Registrar and Disputed Domain Name(s)
The domain name at issue is "KIDSKITCHEN.COM", registered with Network Solutions Inc. ("NSI").
3. Procedural History
Complainant submitted a Complaint to National Arbitration Forum ("The Forum")
electronically on 06/26/2000; The Forum received a hard copy of the Complaint
on 06/26/2000.
On 07/06/2000, NSI confirmed by email to The Forum that the domain
name "KIDSKITCHEN.COM" is registered with NSI and that the Respondent is
the current registrant of the name. NSI has verified that Respondent is
bound by the Network Solutions Service Agreement Version 5.0 and has thereby
agreed to resolve domain-name disputes brought by third parties in accordance
with ICANN's UDRP.
On 06/29/2000, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of 07/17/2000
by which Respondent could file a response to the Complaint, was transmitted
to Respondent via email, post and fax, and to all entities and persons
listed on Respondent's registration as technical, administrative and billing
contacts by email.
On July 21, 2000, pursuant to Complainant's request to have the dispute decided by a Single Member panel, The Forum appointed Judge Richard B. Wickersham, (Ret.), as Panelist.
4. Relief Sought
The Complainant requests that the domain name be transferred from the Respondent to the Complainant.
5. Parties Contentions
A. Complainant
The grounds upon which the Complaint is made are:
1. The domain name, kidskitchen.com, registered by Respondent, is identical
to the trademark KID'S KITCHEN owned by Complainant (hereinafter the "Mark").
Complainant has used its Mark in commerce and owned registrations for its
Mark since 1987. Complainant's Mark is registered on the Principal Register
of the United States Patent and Trademark Office, subject to U.S. Reg.
No.'s 1,598,823 for shelf-stable microwaveable entrees, consisting primarily
of pasta or noodles; 1,603,922 for shelf-stable entrees consisting primarily
of chicken, beef or cheese; 1,603,923 for shelf-stable entrees consisting
primarily of vegetables; and 2,186,013 for sandwiches consisting of meat
and/or cheese with a bun; and corn dogs. Complainant's Mark is also used
as a common law service mark for a children's reading club program. Complainant
clearly has established rights in its Mark by using it continuously and
extensively as a trademark and service mark;
2. Respondent's use of the identical domain name is confusing not only
because it is identical but also because the content of its website uses
colors, typestyles, and a children's cooking theme virtually identical
to that used by Complainant, and also uses Complainant's identical Mark
as a service mark.
B. Respondent
For a Response to the Complainant, Respondent states:
1. Respondent, Spotted Cow Media (SCM), avers that it is a small company
owned by two brothers, hereafter referred to as Respondents'. On or around
June 1, 1966 SCM was formed to provide web design services and develop
content websites. The mother of the principals of SCM is a High School
Home Economics instructor of 25-years and indicated an interest in contributing
to an SCM website. In addition to teaching, Respondents' mother teaches
children's cooking classes at a local cooking school, and holds children's
cooking parties for birthdays and other special events. Respondents' mother
often refers to her classroom affectionately as her "Kids' Kitchen." Therefore,
when a website was developed for Respondents' mother to participate in,
the creation of kidskitchen.com was the obvious choice;
2. Respondent further alleges that on August 9, 1996, SCM queried the
"whois" database at Network Solutions and found the domain name kidskitchen.com
to be available. In addition, a search on common search engines for the
name "Kids Kitchen" revealed nothing that would indicate any infringement.
Therefore, the domain name kidskitchen.com was registered on this day to
SCM;
3. Further, the intent of SCM was to allow Respondents' mother to develop
content of website, while SCM provided web design, hosting and other ancillary
services. Content of site was to be based on a book that Respondents' mother
was writing (now completed yet unpublished) and her copious notes from
her cooking classes and birthday parties;
4. Respondent further contends that SCM was not aware of HFC's trademark
until mid-December 1999, when a registered letter arrived from Melanie
J. Cicchese, counsel for HFC, informing SCM of HFC's trademark;
5. Further, in an attempt to amicably settle this matter, SCM retained
legal counsel to contact Ms. Cicchese. Ms. Cicchese indicated that a disclaimer
on the site would most likely settle the matter. Therefore, acting in good
faith, a disclaimer was added to the site, which reads, "KidsKitchen.com
is in no way affiliated with Hormel Foods Corporation."
6. Findings
I. The Complainant is Hormel Foods Corporation and Hormel Foods, LLC,
of Austin, MN. The Respondent is Spotted Cow Media, Las Vegas, NV and the
domain name at issue is KIDSKITCHEN.COM, which name is registered with
Network Solutions, Inc. The Respondent is the current registrant of the
name.
II. The domain name, kidskitchen.com, registered by Respondent is identical
to the trademark KIDS'KITCHEN, owned by Complainant which Mark has been
used in commerce by Complainant since 1987. Complainant's Mark is registered
on the principal register of the United States Patent and Trademark Office.
Complainants Mark is also used as a common law service mark for a children's
reading club program. Complainant has established rights in its Mark by
using it continuously and extensively as a trademark and service mark.
III. Respondents use of the identical domain name is confusing not
only because it is identical but also because the content of its website
uses colors, typestyles, and a children's cooking theme which are virtually
identical to that used by Complainant and also uses Complainant's identical
Mark as a service mark.
IV. As stated, Network Solutions is the Registrar of the kidskitchen.com
domain name registration and the Registrant is Spotted Cow Media, created
August 09, 1996. The domain registration kidskitchen.com is in active status.
V. KIDS'KITCHEN is a trademark used as product name. It is registered
on the Principal Register since 1987 at U.S. Registration No. 1,598,823
for self-stable microwaveable entrees, consisting primarily of pasta or
noodles; No. 1,603,922 for self-stable entrees consisting primarily of
chicken, beef or cheese; and No. 1,603,923 for shelf-stable entrees consisting
primarily of vegetables and No. 2,186,013 for sandwiches consisting of
meat and/or cheese with a bun; and corn dogs, et al.
7. Discussion
Paragraph 4(a) of the ICANN Uniform Domain Name Dispute Policy ("Policy") directs that the Complainant must prove each of the following three elements to support a claim that a domain name should be cancelled or transferred:
(1) the domain name registered by the Respondent is identical of confusingly
similar to a trademark or service mark in which the Complainant has rights;
(2) the 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
I find that Respondent's use of the identical domain name is confusing
not only because it is identical but also because the content of its website
uses colors, typestyles, and a children's cooking theme virtually identical
of that used by Complainant, and also uses Complainant's identical Mark
as a service mark.
Rights or Legitimate Interests
I find that Respondent has no rights or legitimate interests in the
domain name at issue. Respondent owns no federal or state trademark registrations
identical or similar to Complainant's Mark. Respondent's company is named
Spotted Cow Media, not Kids' Kitchen or any derivative thereof. Thus, Respondent
is not commonly known by the domain name.
Registration and Use in Bad Faith
I find that Respondent is using this domain name for commercial gain.
The website contains a solicitation for sponsors to invest in the website
and/or to purchase banner advertisements. Such solicitation is evidence
that Respondent is making a commercial use of this domain name.
I find further that Respondent uses colors and typestyles virtually
identical to Complainant's Mark, which, coupled with the use of an identical
domain name, misleadingly diverts consumers to Respondent's site.
Finally, I find that Respondent's registration and use of this domain
name is in bad faith. By registering and using the domain name, Respondents
intentionally attempts to attract, for commercial gain, Internet users
to its website by creating a likelihood of confusion with Complainant's
Mark as to the source, sponsorship, affiliation or endorsement of its site
and service.
8. Decision
I find in favor of the Complainant, Hormel Foods Corporation and Hormel Foods, LLC, and against the Respondent, Spotted Cow Media, and hereby ORDER and DIRECT that the domain name KIDSKITCHEN.COM, be and is hereby transferred from the Respondent to the Complainant.
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