The Curvon Corporation v. Lauren Kallareou; The Tack Box

WIPO Arbitration

and Mediation Center

ADMINISTRATIVE

PANEL DECISION

The Curvon

Corporation v. Lauren Kallareou, The Tack Box

Case No.

D2001-0565

1. The Parties

The Complainant is The

Curvon Corporation, a corporation of New Jersey, U.S.A., having a place of business

at 34 Apple Street, Tinton Falls, New Jersey, U.S.A.

The Respondent is Lauren

Kallareou, The Tack Box. According to the Complaint, Lauren Kallareou was located

at 2 Windsor Road, Montvale, New Jersey and now is in Russia. Her mother Marilyn

Kallareou, is the sole owner of The Tack Box at 92 Main Street, Tappan, New

York. She is treated as spokesperson for the registrant of the domain name which

is in dispute in this case.

2. The Domain Name and

Registrar

The domain name

in dispute is <bakerblanket.com>.

The Registrar of the disputed

domain name is Network Solutions, Inc., of 505 Huntmar Drive, Herndon, Virginia,

U.S.A.

3. Procedural History

The Complaint was received

in hard copy on April 19, 2001, by the WIPO Arbitration and Mediation Center

(the "Center"). An electronic copy followed on April 25, 2001. The

Complaint indicated that it was being submitted pursuant to the Uniform Policy

for Domain Name Dispute Resolution (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").

On April 24, 2001, the

Center requested that Network Solutions, Inc., verify that a copy of the Complaint

had been sent to it, that it is the Registrar of the disputed domain name, and

that Respondent is the current registrant of the disputed domain name. Network

Solutions, Inc., responded on April 27, 2001, confirming that it is the Registrar

for an active registration of the disputed domain name and that Network Solutions’

Service Agreement 5.0 is in effect. The Registrar identified the domain name

registrant contact as "Kallareou (BAKERBLANKER-DOM), 2 Windsor Road, Montvale,

New Jersey" The administrative, technical, and billing contact is identified

as "Kallareou, Lauren, The Tack Box, 92 Main Street, Tappan, N.Y."

After a formalities check

was made with respect to the Complaint, the Center on April 30, 2001, sent

a Notification of Complaint and Commencement of Administrative Proceeding to

Respondent. This notice specified that the last day for sending Respondent’s

Response would be May 19, 2001.

On May 22, 2001, the Center,

not having received a Response, issued a Notification of Respondent Default.

Thereafter, William L. Mathis was invited by the Center to serve as sole Panelist

for this case. He accepted and provided to the Center his Declaration of Impartiality

and Independence. On June 7, 2001, the parties were notified of the appointment

of William L. Mathis and the case file was forwarded to him for a decision of

the case.

The relief sought by Complainant

in this Administrative Proceeding is transfer of the disputed domain name to

Complainant.

4. Factual Background

Complainant is the owner

of United States Trademark Registration No. 1,932,664, of November 7, 1995.

This registration relates to a trademark for goods described as "horse

blankets." The mark of the registration is a complex composite of design

matter and word matter. The Complaint describes it as a "stylistic trademark

(the ‘Mark’) consisting of a ‘Figure of a Horse with a Blanket’ prominently

displaying the words ‘5/A BakerBlanket’ twice’." A web page of the United

States Patent & Trademark Office web site provides a more extensive recitation

of the word matter in the mark of Reg. No. 1,932,664:

BEWARE OF IMITATIONS THE

ORIGINAL 5/A BAKER BLANKET HAS BEEN IMITATED INFERIOR QUALITIES WHICH WILL NOT

WEAR. LOOK FOR THIS HORSE BRANDED INSIDE NONE GENUINE WITHOUT IT. TRIPLE WEAVE

CONSTRUCTION 100% ACRYLIC FABRIC THIS IS ORIGINAL BLANKET. BY CURVON THIS BLANKET

IS WOVEN WITH A GREAT NUMBER OF WARP THREADS. IT IS THE STRONGEST HORSE BLANKET

MADE, AND WILL OUTWEAR MORE THAN FIVE BLANKETS OF ANY OTHER MAKE. NONE GENUINE

WITHOUT THIS HORSE.

According to uncontested

allegations in the Complaint, the "Respondent is a dealer of tack room

supplies used for riding horses who has sold blankets on behalf of the Complainant."

Para. 12(b).

The record does not contain

any indication that the disputed domain name has been used to identify an operating

web site.

Complainant has requested

Respondent to transfer to Complainant the domain name in issue here. On one

occasion, Complainant offered a "$500.00 merchandise credit in your account

upon completion of the transfer." Complaint, Annex 5. This offer was not

accepted. Nor has Respondent acted to transfer the domain name to Complainant.

5. Parties’ Contentions

A. Complainant

The Complainant contends

that it owns the trademark of U.S. Registration 1,932,664 and that the disputed

domain name <bakerblanket.com> is confusingly similar to such trademark.

The Complainant contends

further that Respondent has no rights or legitimate interests in respect to

the domain name and that the domain name was registered and is being used in

bad faith.

B. Respondent

Since the Respondent failed

to submit a Response to the Complaint, this dispute has proceeded to a decision

in the absence of contentions made on behalf of the Respondent.

6. Discussions and Findings

Confusing Similarity

It is important to be clear

about what is being compared with what in making a determination on whether

a particular domain name is confusingly similar to a trademark. The domain name

here is, of course, <bakerblanket.com>. But, what exactly constitutes

Complainant’s trademark?

The mark of U.S. Registration

No. 1,932,664 is the whole of the composite of design matter and word

matter which is shown in the registration document. The registration stands

under the law as evidence of Complainant’s ownership of the composite as a whole,

not individual components of the mark. Two appearances of "baker blanket"

in the extensive word matter which makes up part of the mark as shown does not

justify a conclusion that Complainant has ownership of "baker blanket"

as such. Complainant’s assertion that "[b]ased on knowledge and belief,

no other trademark in the United States employs the combination of ‘baker’ and

‘blanket’" (Para. 12(b)of the Complaint) is without legal significance

with respect to the issue of whether Complainant owns trademark rights in "baker

blanket."

The Panel has considered

also the allegations that Complainant has used the mark shown in Registration

No. 1,932,664 since July 30, 1990, and that this composite mark has been used

both "for the labeling and advertising" of Complainant’s horse blankets

and by licensed third parties in connection with sports clothing and equipment.

Standing alone, these bare allegations of use of the composite are insufficient

to establish Complainant’s ownership of trademark rights to the component words

"baker blanket."

Since no other evidence

of ownership by Complainant of trademark rights has been presented, the Panel

finds that the elaborate composite mark of Registration No. 1,932,664 is the

only mark actually shown by the Complaint to be the owned by Complainant. After

comparing the disputed domain name with the whole of the registered composite

mark, the Panel also finds that the two are not confusingly similar. The mere

appearances of "baker blanket" among the dozens of words which are

included in the composite mark along with multiple design features does not

justify a contrary conclusion.

Respondent’s Rights or

Legitimate Interests

In accordance with Section

4.a.(ii) of the Policy, the Complainant has an obligation to prove that the

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

Since it has not been established

that Complainant owns trademark rights in "baker blanket", the Panel

must view the rights and interests of Respondent in the context of an understanding

that "baker blanket" could be a descriptive term pertaining to a type

of horse blanket. The text matter in Complainant’s mark itself is not believed

to be inconsistent with such an understanding.

Further, the Complainant

acknowledges that Respondent as a dealer for tack room supplies, has sold blankets

on behalf of Complainant. It is not apparent to the Panel why a dealer’s registration

of a domain name which is descriptive of a product he or she sells should be

viewed as lacking in legitimacy.

Accordingly, the Panel

finds that Complainant has not carried its burden to prove Respondent’s lack

of rights or legitimate interests in the disputed domain name.

Bad Faith in Registration

Paragraph 12(d) of the

Complaint contains a package of summary charges which apparently are intended

to suggest bad faith on the part of Respondent. However, the Panel cannot accept

them as sufficient to carry Complainant’s burden to prove that Respondent’s

domain name has been registered and is being used in bad faith.

The Complaint does not

explain either why Complainant considers "BakerBlanket" to be a key

component of its registered mark or why Respondent’s role as "a dealer

for the Complainant’s labeled products" should have made Respondent aware

of a Key component" status for "BakerBlanket." Moreover, the

Complaint does not explain what effect "key component" status would

have either with respect to Complainant’s ownership rights in "BakerBlanket"

or with respect to the issue of confusing similarity between <bakerblanket.com>

and the composite trademark which forms the subject matter of Complainant’s

Registration No. 1,932,664.

The remainder of Complaint

Paragraph 12(d) is a single long sentence that insinuates wrongdoing on the

part of Respondent. However, it does not provide clear evidence of facts on

which the Panel might reasonably rely.

Paragraph 12(e) of the

Complaint is similarly deficient as evidence in support of Complainant’s contention

that Respondent has registered and is using the disputed domain name in bad

faith. It merely says:

Respondent’s use of

the domain name, "bakerblanket", prevents the Complainant from employing

the site to create a web page which would advertise the availability of the

Complainant’s products from each of its dealers throughout the United States

by showing their locations, telephone and fax numbers, as well as e-mail addresses,

including those of the Respondent.

Complainant has not shown

that it has a desire to create such a web page or that no third party operates

a web page accessible through a domain name substantially the same as <bakerblanket.com>.

Hence, there is little basis for an assumption that Respondent’s actions have

been directed against Complainant.

The Panel finds, therefore,

that the evidence does not justify a conclusion that the disputed domain name

was registered and is being used in bad faith.

7. Decision

It is the decision

of the Panel that Complainant has not carried its burden of proof on the issues

of (1) confusing similarity, (2) Respondent’s lack of rights or legitimate interests,

and (3) Respondent’s bad faith registration and use of the disputed domain name.

Accordingly, the Panel

does NOT order that the domain name <bakerblanket.com> be transferred

to Complainant.

William

L. Mathis

Sole Panelist

June 21,

2001