Hostess Gets Pie on its Face in Domain Dispute
Tuesday, December 8th, 2009
Decision in domain dispute favorable to non-use of domains for bad faith argument.
needed in domain dispute.
Hostess, the bakery that sells treats such as Twinkies and Ding Dongs, has lost a domain dispute over Hostess.com.
The domain name was purchased at the TRAFFIC auction in New York in 2007 for $44,000 and hasn’t been used since then. That proved to be a problem for Hostess, since the panel was not persuaded the domain was registered in bad faith given no evidence.
The panel wrote:
…Although the Domain Name is identical to Complainantâ€™s well-known trademark, Respondent is correct when it emphasizes that â€œhostessâ€ is also a common word subject to substantial third-party use. Without any further evidence of specifically targeting Complainant and its trademarks, or use of the Domain Name in a manner that supports a finding of seeking to profit from Complainantâ€™s mark, this Panel cannot, on the balance of the probabilities, adopt the inferences which Complainant urges.
As for Complainantâ€™s argument that Respondentâ€™s prior use of the Domain Name was intended for commercial gain to the extent that Respondent hoped to divert Internet users seeking information about Complainantâ€™s products to Respondentâ€™s own website, Complainant has provided no evidence that Respondent has used the Domain Name in this way. Indeed, Respondent has emphasized that there is no allegation that Respondent has ever used the Domain Name in connection with the goods and services covered by Complainantâ€™s trademarks.
In other words, had the domain name been parked with ads for food, Hostess probably would have won the dispute. A number of rogue panels have decided that non-use is a sign of bad faith, so it’s comforting to see this outcome.