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Hunter Douglas Industries, BV, and Hunter Douglas Window Fashions, Inc. [2005] GENDND 476 (15 June 2005)

World Intellectual Property Organization

WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Fresh Intellectual Properties, Inc. v. 800Network.com, Inc.

Case No. D2005-0061

1. The Parties

The Complainant is Fresh Intellectual Properties, Inc., Westbury, New York, United States of America, represented by Kilpatrick Stockton LLP.

The Respondent is 800Network.com, Inc., Dover, Delaware, United States of America.

2. The Domain Name and Registrar

The disputed domain name <800-flowers.com> is registered with Tucows Inc. (“Tucows” or the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) by email on January 18, 2005, and in hardcopy on January 20, 2005. On January 19, 2005, the Center by email formally acknowledged receipt of the Complaint.

On January 19, 2005, the Center transmitted by email to Tucows a request for registrar verification in connection with the domain name at issue. On January 19, 2005, Tucows transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details for the administrative and technical contacts. 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 Respondent of the Complaint, and the proceedings commenced on February 9, 2005. As required by the Rules, the Center sent a copy of the Complaint, along with a Notification of Complaint and Commencement of Administrative Proceeding, to Respondent by Federal Express to its street address and to all of Respondent’s known email addresses, including for its administrative and technical contacts. In accordance with the Rules, paragraph 5(a), the due date for the Response was March 1, 2005. Respondent did not submit any Response. Accordingly, the Center issued a Notification of Respondent Default on March 3, 2005.

The Center appointed David H. Bernstein as the Sole Panelist in this matter on March 10, 2005. 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

Because Respondent failed to file a Response, the Panel accepts as true all statements of fact made by Complainant in its submission. See EAuto, L.L.C. v. EAuto Parts, WIPO Case No. D2000-0096 (April 9, 2000).

Complainant, a Delaware corporation, owns a number of United States trademark or service mark registrations, including 1-800-FLOWERS (Reg. No. 1,009,717; issued April 29, 1975), 800-FLOWERS (Reg. No. 1,398,787; issued June 24, 1986), and 1-800-FLOWERS.COM (Reg. No. 2,434,592; issued March 13, 2001) (collectively, the “800 FLOWERS” marks). Complainant licenses the 800 FLOWERS marks to an affiliate, 1-800-Flowers.com, Inc., which, along with its predecessor entities, has provided a floral product and gift delivery service to customers since at least 1984.¹ Historically, customers placed orders for the delivery of flowers, candy and other items by dialing certain toll-free telephone numbers, including “1-800-FLOWERS.” Starting in 1992, however, Complainant made its goods and services available through the Internet. Since 1994, Complainant has made its goods and services available at the website located at <800flowers.com>. Complainant’s site is also accessible through <1800flowers.com>, as well as other addresses.

Respondent registered the <800-flowers.com> domain name (the “Domain Name”) on September 24, 1998. The Domain Name currently redirects an Internet user to “www.megago.com”, which is an online directory or portal page that permits the user to link to other webpages.

5. Parties’ Contentions

A. Complainant

Complainant contends that the Domain Name is virtually identical to its 800 FLOWERS marks because the Domain Name adopts the 800-FLOWERS mark exactly and in its entirety.

Complainant alleges that Respondent lacks any rights or legitimate interests in the Domain Name. Complainant contends that its first use of the 800 FLOWERS marks predates by more than fourteen years any use Respondent may claim to have made of “800-flowers.com” as a trade name, domain name or mark. Complainant alleges that, because its 800 FLOWERS marks were registered before Respondent registered the Domain Name, Respondent is charged with constructive knowledge of such marks and, therefore, any use Respondent may claim to have made cannot be bona fide