ADMINISTRATIVE PANEL DECISION

Under the ICANN Uniform Domain Name Dispute Resolution Policy

1. Parties and Contested Domain Name

Complainant is KV Vet Supply Co., Inc., 3190 N Road, David City, Nebraska 68632 USA. Complainant is a Nebraska corporation engaged in the promotion and sale of veterinary, animal health, and animal care supplies and products. It has continuously conducted business under the KV Vet Supply name and has used the KV Vet Supply common law service mark since 1986. According to Respondent, Complainant filed applications for federal trademark registration in June 2001 for KVVET SUPPLY and KV HEALTH LINKS. Complainant also is the registered owner of the domain name kvvet.com, which was registered on October 21, 1996[1], and has been in use since August 1998.

Respondent is Healthy Pets, Inc. dba NetPets, 25886 Mission Blvd., Hayward, California 94544 USA. Respondent is a California corporation that has been in business for over ten years. Respondent is a specialist retailer and supplier of pet health products. Respondent also is the registered owner of the domain name healthypets.com, which was registered on February 12, 1997[2], and has been in use for three years.

2. Procedural history

The electronic version of the Complaint form was filed on-line through eResolution’s Website on June 06, 2001. The hardcopy of the Complaint Form was received on June 29, 2001.  ayment was received on July 03, 2001.

The Clerk’s Office fulfilled all its responsibilities under Paragraph 2(a) on July 04, 2001. This date is the official commencement date of the administrative proceeding.

The complaint, official notification and all the annexes were sent via registered mail with proof of service, to the respondent. According to the Canada Post tracking system, all were delivered.

On July 24, 2001, the Respondent submitted its response via eResolution Internet site. The signed version of the response was received on July 24, 2001.  

3. Factual Backgrounds

Complainant states that it continuously has been doing business under the KV Vet Supply name and been using the KV Vet Supply service mark throughout the United States since 1986. Complainant owns the domain name kvvet.com, through which it has been selling veterinary supplies since August 1998.

Complainant states that there have been actual documented instances of confusion between Complainant’s KV Vet Supply service mark and Respondent’s kvvetsupply.com domain name. The Complaint relates two known instances within three weeks of Respondent’s registration of the contested domain name:

On June 4, 2001, KV Vet Supply received a phone call from a customer who was interested in purchasing a presecription product called Heartgard. He advised KV Vet Supply that when he typed in the Internet address kvvetsupply.com, he was taken to healthypets.com.

On June 11, 2001, KV Vet Supply received a call from an existing customer. She had placed an online order through kvvetsupply.com. At some point she realized that when she placed her online order it had actually been with healthypets.com. The customer commented that it was “very confusing” to type in kvvetsupply.com and end up at healthypets.com.

Manny Ghumman, President of Respondent Healthy Pets, Inc. dba NetPets, filed a declaration in support of the Response. He states that Respondent has and does operate under numerous fictitious business names, one of which was and is Kennel and Vet Veterinary Supplies. He attached a quotation letter, dated April 14, 1997, on letterhead that reads “Kennel and Vet Veterinary Supply, 2053 Sandalwood Ct., Palo Alto, CA 94303 510-537-0543.”  He states that Respondent used that name throughout at least 1997 and 1998, and as part of a plan to revitalize the name, Respondent registered the contested domain name in May 2001.

The Response states that Respondent has experienced no complaints of actual confusion.

4. Parties' Contentions

Complainant contends that it has common law rights in the service mark KV Vet Supply, and that there is actual confusion between Complainant’s service mark and the contested domain name. Complainant also contends that the parties are in direct competition, that there is a high degree of overlap between the goods offered at kvvetsupply.com and those offered at KV Vet Supply’s kvvet.com website. Finally, Complainant contends that Respondent registered and uses the contested domain name intentionally to misdirect individuals wishing to visit KV Vet Supply’s website to the healthypets.com website.

Respondent contends that it operates under the fictitious business name Kennel and Vet Veterinary Supplies, that the contested domain name is nothing more than an abbreviation of that name, and that Respondent registered the domain name as part of a plan to revitalize that name. Respondent also contends that Complainant has no trademark rights, in that it never obtained federal registration and that the mark is highly descriptive and weak. Finally, Respondent contends that there is no confusion and that it has received no complaints of confusion.

5. Discussions and Findings

Under Paragraph 4(a) of the UDRP, the Complainant has the burden of proving each of the following: (1) that the domain name is identical or confusingly similar to the complainant’s mark; (2) that the Respondent has no rights or legitimate interests in the domain name; and (3) that the Respondent registered and is using the domain name in bad faith.

A.     The Contested Domain Name, kvvetsupply.com, is Identical or Confusingly Similar to the Complainant’s Mark, KV Vet Supply, in which the Complainant Has Rights

The UDRP does not require the Complainant to base its complaint upon a registered trademark; indeed, many previous decisions have found that the contested domain name is identical or confusingly similar to complainant’s common law trademark.

In this matter, Complainant alleges, and Respondent has not refuted, that Complainant has been continuously conducting business under the KV Vet Supply name and continuously using the KV Vet Supply service mark since 1986. Furthermore, Complainant registered the domain name kvvet.com on October 21, 1996, and has been doing business over this site since August 1998. For the purposes of this determination, this Panel accepts these unrefuted facts as supportive of a finding that the Complainant has rights in the common law service mark KV Vet Supply.

This Panel further finds that the contested domain name, kvvetsupply.com, is identical to Complainant’s mark, KV Vet Supply, and that the contested domain name is confusingly similar to Complainant’s mark, KV Vet Supply, and to Complainant’s website, kvvet.com. Complainant has reported actual instances of confusion, where customers intending to visit the Complainant’s website have ended up at Respondent’s website, instead. One specifically noted that it was “very confusing” to type in kvvetsupply.com and end up at healthypets.com. 

B.     The Respondent Has No Rights or Legitimate Interests in the Domain Name

Paragraph 4(c) of the UDRP states that :

Any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate your rights or legitimate interests to the domain name for purposes of Paragraph 4(a)(ii):

(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or

(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or

(iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.

Viewed most favorably to Respondent, this Panel finds that in 1997 and 1998, Respondent operated at least in part under the fictitious business name Kennel and Vet Veterinary Supplies, which is reflected on the letterhead of a quotation dated April 14, 1997 (the signature block on the quotation abbreviates the business name as “KV Vet supply[sic].” However, there is no indication that Respondent has used this business name in the last three years; indeed, Respondent has chosen to operate, and is commonly known, as Healthy Pets, Inc. dba NetPets.

Respondent alleges that “as part of its plan of revitalizing [Kennel and Vet Veterinary Supplies], Respondent registered the domain KVVETSUPPLY.COM in May of this year. As is done by many e-commerce sites, the domain was redirected to Respondent’s true homepage located at www.healthypets.com. To do such is a perfectly legitimate Internet marketing technique.” (Ghumman Declaration, ¶ 5.) There is no issue as to whether it is a legitimate practice on the Internet to redirect traffic from one of Respondent’s domain names to another of Respondent’s domain names. However, it is clear from Respondent’s actions that – in Respondent’s own words -- “Respondent’s true homepage” is located at www.healthypets.com. Respondent registered and set up www.kvvetsupply.com solely to direct traffic to www.healthypets.com. Respondent has taken no other action to revitalize the fictitious business name Kennel and Vet Veterinary Supplies.

Accordingly, based on the record and the factors set forth in Paragraph 4(c), this Panel finds that Respondent does not have any current rights or legitimate interest in the domain name.

C.     The Respondent Has Registered and Is Using the Domain Name in Bad Faith

The UDRP sets forth the following as evidence of registration and use in bad faith :

 (i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or

(ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or

(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or

(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location.

6. Conclusion

This Panel finds that Complainant has met all the requirements of UDRP 4(a). Complainant’s request to transfer the domain name kvvetsupply.com to Complainant is GRANTED.

7. Signature

[1] See Attachment A (Whois listing for kvvet.com).

[2] See Attachment B (Whois listing for healthypets.com).

[3] See Attachment C (Whois listing for kvvetsupply.com).

[4] See Attachment D : compare page 1 with page 3, and page 2 with page 4. Respondent admits that www.kvvetsupply.com is redirected to www.healthypets.com. Indeed, it is common practice to link two domain names that are owned by the same corporation.

Attachments:

Attachment A: http://www.opensrs.org/cgi-bin/whois.cgi – Whois info for kvvet.com (one page)

Attachment B: http://www.opensrs.org/cgi-bin/whois.cgi – Whois info for healthypets.com (one page)

Attachment C: http://www.opensrs.org/cgi-bin/whois.cgi – Whois info for kvvetsupply.com (one page)

Attachment D: http://www.kvvetsupply.com (Attachment D, pages 1 and 2) and http://www.healthypets.com (Attachment D, pages 3 and 4)