Armtech, Inc. v. mohmd khiat thranchi
Claim Number: FA2205001997108
Complainant is Armtech, Inc. (“Complainant”), represented by Sabrina Danielson of Holland & Hart LLP, Colorado, USA. Respondent is mohmd khiat thranchi (“Respondent”), Denmark.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <myagrinet.com>, (‘the Domain Name’) registered with CSL Computer Service Langenbach GmbH d/b/a joker.com.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted an English language Complaint to the Forum electronically on May 19, 2022; the Forum received payment on May 19, 2022.
On May 20, 2022, CSL Computer Service Langenbach GmbH d/b/a joker.com confirmed by e-mail to the Forum that the <myagrinet.com> Domain Name is registered with CSL Computer Service Langenbach GmbH d/b/a joker.com and that Respondent is the current registrant of the name. CSL Computer Service Langenbach GmbH d/b/a joker.com has verified that Respondent is bound by the CSL Computer Service Langenbach GmbH d/b/a joker.com registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On May 25, 2022, the Forum served the Complaint and all Annexes, including a German and English language Written Notice of the Complaint, setting a deadline of June 14, 2022 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@myagrinet.com. Also on May 25, 2022, the German and English language Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On June 22, 2022 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne as Panelist.
On June 22, 2022 the Panel requested further evidence from the Complainant re its rights in the AGRINET mark and the issue of whether or not the Respondent was targeting the Complainant and giving the Respondent the opportunity to comment on the same.
On July 1, 2022 the Respondent submitted a letter setting out its position.
On July 6, 2022 the Complainant submitted an additional submission in response to the request of the Panel.
On July 9, 2022 the Respondent responded to the additional submission of the Complainant.
On July 25, 2022 the Complainant replied to the Respondent’ Response to the Additional Submission of the Complainant.
All additional submissions were received in a timely manner within deadlines given by Orders from the Panel. Although the Respondent was technically in default at the time the Response was due it received the documents in German and apologised for this and its letter setting out its position was received in good time after the Panel requested further information from the Complainant and gave the Respondent an opportunity to comment. As such all submissions are deemed to have been submitted within the Rules and have been considered in full.
Complainant requests that the Domain Name be transferred from Respondent to Complainant.
PRELIMINARY ISSUE: LANGUAGE OF THE PROCEEDINGS
Pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the English language Complaint and Commencement Notification, and, absent a Response, determines that the remainder of the proceedings may be conducted in English.
A. Complainant
The Complainant’s contentions can be summarised as follows:
The Complainant is the owner of the trade mark AGRINET registered in logo form in the USA for insurance and software services for agriculture with first use recorded as 2001. It operates globally including Europe and the Middle East.
The Domain Name registered in 2022 is confusingly similar to the Complainant’s AGRINET mark, wholly incorporating its letters and adding only the generic word ‘my’ and the gTLD ‘.com’ neither of which distinguish the Domain Name from the Complainant’s mark under the Policy.
Respondent is listed in the WhoIS as Mohmd Khiat Thranchi of Denmark, is not commonly known by the Domain Name and has no permission from the Complainant to use the Complainant’s mark. The Domain Name has been used for competing agricultural consultancy services. This cannot be a bona fide offering of goods and services or a non commercial legitimate fair use. The Respondent has no rights or legitimate interests in the Domain Name.
The Respondent registered the Domain Name to direct it to a site competing with the Complainant which will confuse Internet users into believing the Respondent’s web site and Domain Name are associated with the Complainant and disrupt the business of the Complainant . The Domain Name has been registered and used in bad faith.
B. Respondent
The Respondent’s contentions in its Response can be summarised as follows:
The Respondent apologises for a late Response as all correspondence was in German.
The Respondent is an academic start up operating originally in Iran in the Farsi language.
The Complainant does not use AGRINET as a Domain Name.
If AGRINET is googled the Complainant does not appear on the first page of the results. Others use the AGRINET mark in the agricultural area in English.
C. Additional Submission of the Complainant
Complainant is not related to Agrinet in South Africa and Agrinet in Ireland. However, neither of these parties provide similar or overlapping offerings as Complainant and instead, the identified parties are distinguishable from Complainant in ways that Respondent cannot be distinguished. The South African entity is a wholesale supplier offering a wide variety of goods, including construction hardware, tools, lawn care products, irrigation products, outdoor products, paint, and electrical/plumbing products. The Irish entity, on the other hand, offers software for use in a very specialized and niche field, namely, grass and herd management to help improve rotational grazing systems. Moreover, the identified third parties appear to be legitimate companies. This is evidenced by the identified third parties using the local ccTLDs .ie and .za as opposed to the generic ‘.com’ top-level domain which Respondent uses in the Disputed Domain Name. In fact, it is not an unusual occurrence for multiple legitimate companies to use similar trademarks around the world, when those entities operate in separate and unique industries and/or jurisdictions. Indeed, Complainant takes no issue with third parties, such as those identified in the Panel’s Order, operating under the AGRINET mark when there is no bad faith, overlap with Complainant’s offering, geographic reach, or diversion of Internet traffic. However, Complainant is concerned with an identical AGRINET trademark appearing in a ‘.com’ top-level domain name, with English content, targeting and overlapping with Complainant’s agricultural industry, all of which is evidence of an abusive domain name registration.
Complainant not only offers crop insurance under the AGRINET mark, Complainant also offers precision integrated farming tools that allow agricultural producers to manage operations efficiently at field level, integrate data analysis with precision farming equipment, and enhance strategic planning as well as acreage mapping and reporting tools. Complainant’s offerings naturally extend into the fields of agronomy, food safety, regulatory compliance, farm and food production, and sustainability. Respondent offers nearly identical and highly related consulting and project management for agronomy, horticulture, irrigation, and soil science through use of information technology as well as plant production consulting for agriculture, horticulture, and gardens, all of which overlap with Complainant’s offerings.
Respondent’s use of multiple spelling variations of the AGRINET mark is further evidence of Respondent’s intent to maximize diverted Internet traffic away from Complainant and to the Disputed Domain Name. Respondent has used misspelled variations of the AGRINET mark, including AGRINT, AGRAND, AGRENT, AGRINT, AGERINT, and AGRANT in the website content appearing on the Disputed Domain Name.
Moreover, the website content located at the Disputed Domain Name includes multiple redirects, including a redirect to <mstpark.com> linked to the AGRINET logo on the homepage and redirects to <themeforest.net> from multiple “buttons” on the English “About Us” page. Panels have previously found that redirections to webpages is evidence that respondents do not rights or legitimate interests in the disputed domain names and registered and are using those disputed domain names for bad faith attraction for commercial gain.
D, Additional Submissions of the Respondent
Agrinet Biotechnology LLC is a registered company in Iran and has all legal licenses. Since it has started to cooperate with neighboring countries, it is expanding its website in English. It has similar activities to the Complainant, but all the agricultural consultations provided are free, and there is no financial benefit.
The Complainant is unknown in Middle East countries as far as the Respondent’s inquiries in neighboring countries can determine. So, using the word "bad faith" in is an unfair and disappointing judgment.
The Complaint mentioned links to "mstpark.com" That website is a reputable university with an international ranking.
Agrinet Biotechnology LLC is a high-tech company. Its business is the design and production of agricultural Bioresonance devices. (Visit Netzist.com)
It changes the electromagnetic structure of water so plants can be more productive with less water consumption. Also, its other devices are based on the science of quantum mechanics. It extracts, stores and copies the intercellular electromagnetic vibrations of biological matter. It can transmit any bio-material electromagnetic vibrancy from one living organism to another. There are two types of activities.First: Production of Bioresonance devices with the brand of “Netzist”.Second: Free agricultural consulting and content production under the name of “Agrinet”.
Years ago, the Respondent registered the name Agrinet with the national domain of Iran (Agrinet.ir). Now that it is expanding its actions, it decided to have a ".com" with the same "Agrinet" name
The basis for choosing the name of Myagrinet is also the similarity with the Respondent’s national domain name. The Respondent did not know the Complainant's company and had not even heard their name until recently.
E Complainant’s Second Additional Submission/Reply to the Respondent’s Response to The Complainant’s First Additional Submission
Complainant enjoys significant reputation in its AGRINET trademark throughout the world and within the agricultural industry. Moreover, Complainant’s parent company, Sompo Holdings Inc. and its affiliates, operate throughout the Middle East, including in Bahrain, Cyprus, Iraq, Kuwait, Lebanon, Qatar, Saudi Arabia, Turkey, United Arab Emirates, and Yemen. Consequently, and despite Respondent’s unfounded allegations to the contrary, Complainant and its parent not only have business interests and connections in the Middle East, but agricultural consumers in this geographic region recognize Complainant and its agricultural offerings.
Complainant has made a prima facie case that Respondent has no rights or legitimate interests in the Disputed Domain Name and as such, the burden shifts to Respondent to show with clear evidence that it does possess those rights or interests.
Additionally, Respondent submits only self-serving assertions that Respondent is known as AGRINET and is a registered company in Iran with all legal licenses. These statements alone, without corroborating evidence, fail to meet the requirements described in Policy 4(c)(ii) for establishing its rights or legitimate interests in the Disputed Domain Name.
Respondent also seemingly argues that because Complainant primarily operates in English, and Respondent utilizes Farsi, the Panel should find in Respondent’s favor. However, Complainant’s primarily language is not the deciding factor in UDRP proceedings. Rather, Domain Name is written in English and is confusingly similar to, and entirely incorporates, Complainant’s AGRINET trademark.
Moreover, Respondent offers an English language translation on its website, utilizes the ‘.com’ gTLD, which is commonly directed toward English speaking Internet users, and indeed admits that it directs its confusingly similar domain name to English-speaking countries.
The Complainant is the owner of the trade mark AGRINET, registered inter alia in the USA for insurance and software services for agriculture with first use recorded as 2001.
The Domain Name registered in 2022 has been used for a web site which is available in English and Farsi offering agricultural consultancy activities which the Respondent admits are similar to the Complainant’s activities.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The Domain Name contains all the Complainant’s AGRINET mark (registered, inter alia, in USA for insurance and software services for agriculture with first use recorded as 2001) in its entirety together with the generic word ‘my’ and the gTLD.com.
Previous panels have found confusing similarity when a respondent merely adds a generic word to a Complainant's mark. See PG&E Corp. v. Anderson, D2000-1264 (WIPO Nov. 22, 2000) (finding that respondent does not by adding common descriptive or generic terms create new or different marks nor does it alter the underlying mark held by the Complainant). The Panel agrees that the addition of the generic word ‘my’ does not prevent confusing similarity between the Domain Name and the Complainant's trade mark pursuant to the Policy.
The TLD ‘.com’ does not serve to distinguish the Domain Name from the Complainant’s mark, which is the distinctive component of the Domain Name. See Red Hat Inc v. Haecke FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the TLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Name is confusingly similar for the purposes of the Policy with a mark in which the Complainant has rights.
As such the Panel holds that Paragraph 4(a)(i) of the Policy has been satisfied.
Rights or Legitimate Interests
The Complainant has not authorised the use of its mark.
The Respondent is listed as Mohmd Khiat Thranchi of Denmark and although the Respondent has said he is linked to a company called Agrinet Biotechnology LLC which he says is properly set up in Iran he has not provided any corroborating evidence of this or the relationship between himself as the named Respondent and that company. Further the Domain Name is <myagrinet.com> and given that the Respondent is named as Mohmd Khiat Thranchi of Denmark there is no evidence or reason to suggest the Respondent is, in fact, commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).
Any links on the Respondent’s site do not appear to be pay per click links. As Farsi does not use written vowels this could explain the different vowels used in AGRINET in the translation of the Farsi web site into English. Although the Panel agrees that an established business would probably have used consistent spelling of its brand on the English version of web site nothing turns on these points.
However, the Respondent admits he provides services similar to the services provided by the Complainant and there is no evidence of any other prior use of the Domain Name <myagrinet.com> or the mark AGRINET by the Respondent. The unsubstantiated assertion that the Respondent has used the Agrinet.ir domain name for ‘years’ is contradicted by the Respondent’s other assertion that his company is a start up, ie a brand new company.
The Respondent’s web site does not make it clear that there is no connection with the Complainant. The Panel finds this use is confusing. As such it cannot amount to the bona fide offering of goods and services. The Respondent asserts it provides its services for free, but as they are competing with the Complainant in circumstances likely to cause confusion even if this use is not for profit this use is not fair.
There is sufficient evidence to support the Complainant’s case that the Respondent does not have rights or legitimate interests in the Domain Name and rather than rebutting that evidence the Respondent’s admission that it provides competing services in a specialised field has supported the Complainant’s case.
As such the Panel finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
The Complainant has submitted evidence that despite the assertions of the Respondent the Complainant’s corporate group does operate extensively in the Middle East and, therefore, is likely to be known in that region. Since the Respondent operates in the same specialised area as the Complainant and the Respondent is also based in Denmark Europe according to the WhoIS registration details, on the balance of probability the Panel finds it very difficult to believe the Respondent’s assertions that it has never heard of the Complainant or its AGRINET mark given that the Complainant is a major player in the same field in the same geographical regions.
The Respondent has admitted it is using the Domain Name to offer similar and, therefore, competing services to the Complainant in the Middle East where the Complainant’s group of companies operates. The Panel determines that the Respondent’s web site is likely to cause confusion. See Asbury Auto Group Inc v. Tex. Int'l Prop Assocs, FA 958542 (Forum May 29, 2007) (finding that the respondent's use of the disputed domain name to advertise car dealerships that competed with the complainant's business would likely lead to confusion amongst Internet users as to the sponsorship or affiliation of those competing dealerships and was therefore evidence of bad faith and use).
The Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to his website by creating a likelihood of confusion with the Complainant's trade mark as to the source, sponsorship, affiliation or endorsement of the web site attached to the Domain Name and services accessed through it which will be disruptive to the Complainant whose corporate group operates extensively in the Middle East, indeed globally.
As such, the Panel holds that the Complainant has made out its case that the Domain Name was registered and used in bad faith under Policy 4(b)(iii) and (iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <myagrinet.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: July 26, 2022
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