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CMU ISR 08732 - DECISION

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DECISIONZyliss AG v. The Gourmet Kitchen, Inc.Claim Number: FA0306000162069PARTIESComplainant is Zyliss AG, Lyss, SWITZERLAND (“Complainant”) represented by Richard J.Block, of Mirsky & Block, PLLC. Respondent is The Gourmet Kitchen, Tuscaloosa, AL, USA(“Respondent”).REGISTRAR AND DISPUTED DOMAIN NAMEThe domain name at issue is <zylissonline.com>, registered with Bulkregister.Com, Inc.PANELThe undersigned certifies that he or she has acted independently and impartially and to the best ofhis or her knowledge has no known conflict in serving as Panelist in this proceeding.Dawn Osborne as Panelist.PROCEDURAL HISTORYComplainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronicallyon June 9, 2003; the Forum received a hard copy of the Complaint on June 12, 2003.On June 11, 2003, Bulkregister.Com, Inc. confirmed by e-mail to the Forum that the domain name<zylissonline.com> is registered with Bulkregister.Com, Inc. and that the Respondent is the currentregistrant of the name. Bulkregister.Com, Inc. has verified that Respondent is bound by theBulkregister.Com, Inc. registration agreement and has thereby agreed to resolve domain-namedisputes brought by third parties in accordance with ICANN’s Uniform Domain Name DisputeResolution Policy (the “Policy”).On June 12, 2003, a Notification of Complaint and Commencement of Administrative Proceeding(the “Commencement Notification”), setting a deadline of July 2, 2003 by which Respondent couldfile a Response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to allentities and persons listed on Respondent’s registration as technical, administrative and billingcontacts, and to [email protected] by e-mail.A timely Response was received and determined to be complete on June 23, 2003.Complainant’s Additional Submission was received and determined to be timely on June 30, 2003.Respondent’s Additional Submission was received and determined to be timely on July 2, 2003.Complainant’s Additional Submission was received and determined not to be timely on July 7, 2003.Page1of6Decision9/15/2007http://www.arbforum.com/domains/decisions/162069.htmOn July 3, pursuant to Complainant’s request to have the dispute decided by a single-member Panel,the Forum appointed Dawn Osborne as Panelist.RELIEF SOUGHTComplainant requests that the domain name be transferred from Respondent to Complainant.PARTIES’ CONTENTIONSA. ComplaintThe assertions in the Complaint can be summarized as follows:The Complainant is the owner of the trade mark Zyliss registered in the US in January 1975 for,inter alia, kitchen and small household appliances.The Respondent registered the domain name Zylissonline.com on January 31, 2001. This domainname is confusingly similar to the Complainant’s trade mark Zyliss in that it merely adds to the trademark the words “online.com” and the addition is not a distinguishing difference.The Respondent does not have any rights or legitimate interests in the disputed domain namebecause the Respondent’s use of the confusingly similar domain name diverts Internet users to a website unconnected with the Complainant’s business. The Respondent is known as “The GourmetKitchen” and is not commonly known by the disputed domain name. The Respondent’s use forcommercial gain of the confusingly similar domain name misleads customers into believing that theyare dealing with the Complainant.The Respondent registered and is using the domain name in bad faith in that the Respondent hasintentionally attempted to attract, for commercial gain, Internet users to its web site by creating alikelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation orendorsement of the Respondent’s web site or of a product or service on the Respondent’s web site.B. ResponseThe assertions in the Response can be summarized as follows:The Respondent started business in October, 1994 as a retail kitchen store selling the products of anumber of companies including the Complainant’s products. In 1996 it opened its first on-line storeat the <gourmet.org> domain name. After finding that customers got lost on its site which sold 1500products of 27 companies, the Respondent created specific sites starting with thermosonline.comwhich was a great success and resulted in good customer comment. This was the start of a networkof similar sites.The Respondent’s aim was to make customer searches and purchases simpler. The network wasnever to take away business or misrepresent any company it sold for. The aim was to sell products ofwholesale companies to the end user. Almost all of the companies concerned were flattered andsupportive and the Respondent now has about 30 such sites. For companies that are concerned theRespondent offers to include disclaimers such as “We are not the Zyliss AG company.” TheRespondent has not had any major complaints about its site until this one.<zylissonline.com>was invented, reserved, purchased and created solely by the Respondent.It is aPage2of6Decision9/15/2007http://www.arbforum.com/domains/decisions/162069.htmretail site for end users which advertises the Zyliss name for free across the world and does not sellwholesale to retailers. The Complainant is a wholesaler which does not sell to the end user.The <zylissonline.com> name contains “Zyliss” but the term “online” tells the customer that theitems are available to the public through the Respondent’s web site. The Respondent does notadvertise any other product lines on the site keeping customers loyal to Zyliss products. All pages of<zylissonline.com> contain statements stating “we are not the Zyliss AG company” and states “Ifyou need to get in touch with them, call us and we will gladly give you their number.” TheRespondent does this so that it can save consumer’s time by answering their small questions andpreventing the Complainant from receiving unnecessary calls. Such an extensive support practicedemonstrates its knowledge of the Complainant’s products. The Respondent has carried theComplainant’s products for over 6 years and have learned everything about them possible. TheRespondent offers this service to the customer and gives the Complainant’s company telephonenumber or web addresses at the <zylissagusa.com> and <zylissag.com> domain names to allcustomers who have in depth questions it does not feel comfortable answering. The Respondent


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CMU ISR 08732 - DECISION

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