Hershey’s wins MilkDuds.com domain name in National Arbitration Forum decision.
When you hear the word “Milk Duds”, what comes to mind? Most people probably think of the milk chocolate covered caramel candy. The owner of MilkDuds.com tried to argue that it had a line of clothing called Milk Duds, with milk referring to cow designs and duds referring to clothing.
Hershey, the licensee and manufacturer of the tasty candy, prevailed in arbitration and has won rights to the MilkDuds.com domain name.
The respondent tried to argue that the trademark Hershey’s licensor owns is related to candy only, and not clothing. But the arbitrator pointed out that class of service does not necessarily matter when it comes to a UDRP dispute.
Hershey’s successfully proved that the respondent was not commonly known as “Milk Duds”:
Complainant argues that Respondent is not commonly known by the disputed domain name. Complainant asserts that the WHOIS information lists the registrant as “Milk Duds are?â€ and that the e-mail associated with the disputed domain name is inoperable. Thus, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy Â¶ 4(c)(ii).
Hershey’s also pointed out that it didn’t look like much of an effort was made to manufacture or sell the supposed “cow design clothing”:
Complainant argues that Respondent’s disputed domain name resolved to various websites, ranging from “under constructionâ€ web pages to web pages purporting to offer “cow clothingâ€ at some future point. Complainant asserts that Respondent has made no real active use in the 10 years that Respondent has owned the disputed domain name. The Panel finds that Respondent has not made a bona fide offering of goods or services under Policy Â¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy Â¶ 4(c)(iii)
In the respondent’s defense, it didn’t slap up a parking page full of candy ads.