IQ Products Company v. Gavin
Lloyd
Claim Number: FA0708001065183
PARTIES
Complainant is IQ Products Company (“Complainant”), represented by Cary
Rutland, 16212 State Highway 249, Houston, TX 77086. Respondent is Gavin Lloyd (“Respondent”), represented by G
Byron Jamison, of Gordon & Rees
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bugout.com>, registered with Network
Solutions, Inc.
PANEL
The undersigned certifies that he or she has acted independently and
impartially and to the best of his or her knowledge has no known conflict in
serving as Panelist in this proceeding.
Paul M. DeCicco, as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
electronically on August 16, 2007; the
National Arbitration Forum received a hard copy of the Complaint on August 17, 2007.
On August 16, 2007, Network Solutions, Inc. confirmed by e-mail to
the National Arbitration Forum that the <bugout.com> domain name is
registered with Network Solutions, Inc.
and that the Respondent is the current registrant of the name. Network
Solutions, Inc. has verified that Respondent is bound by the Network Solutions, Inc. registration agreement
and has thereby agreed to resolve domain-name disputes brought by third parties
in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the
“Policy”).
On August 28, 2007, a
Notification of Complaint and Commencement of Administrative Proceeding (the
“Commencement Notification”), setting a deadline of September 17, 2007 by which
Respondent could file a Response to the Complaint, was transmitted to
Respondent via e-mail, post and fax, to all entities and persons listed on
Respondent’s registration as technical, administrative and billing contacts,
and to postmaster@bugout.com by e-mail.
A timely Response was received and determined to be complete on September 17, 2007.
On September 27, 2007, pursuant to Complainant’s
request to have the dispute decided by a single-member Panel, the National
Arbitration Forum appointed Paul M. DeCicco as Panelist.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A.
Complainant
Complainant contends as follows:
IQ Products Company registered and owns the trademark, BUGOUT. BUGOUT was first used in commerce on February 7, 1994. The trademark is for aerosol Insect Repellent, domestic insecticides in the nature of Flea and Tick sprays for application directly to pets, Ant and Roach domestic insecticide sprays and foggers, Wasp and Hornet domestic insecticide sprays and foggers, and Flying Insect domestic insecticide sprays and foggers.
All BUGOUT products are currently being sold into
commerce in the
The domain name, <bugout.com> was originally registered to and used continuously by IQ Products Company since at least June 6, 1996 until, unknowingly; the registration was allowed to lapse when the domain name renewal fee was not paid in a timely manner.
Respondent has no rights to the trademark name BUGOUT. Complainant has not assigned any rights, title or interest in the BUGOUT trademark to Respondent nor has it had any dealings with Respondent, business or otherwise, which may have led Respondent to believe he had an interest in the BUGOUT trademark.
To the best of Complainant’s knowledge, Respondent has not used the <bugout.com> domain name nor does Complainant have any knowledge of Respondent’s preparations to use the domain name in connection with a bona fide offering of goods or services. To the best of Complainant’s knowledge, Respondent (as an individual, business, or other organization) has not been commonly known by the domain name in any manner.
Respondent has acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to IQ Products Company who is the owner of the trademark or to a competitor of IQ Products Company, for valuable consideration in excess of Respondent’s documented out-of-pocket costs directly related to the domain name. Complainant cannot find any reason for Respondent to acquire the trademarked name other than the reason listed above.
B.
Respondent
Respondent contends as follows:
Respondent does not contest Complainant’s United States Trademark Registration for BUGOUT or its ownership of that trademark. Respondent notes that the scope of the registration is limited to “DOMESTIC INSECTICIDES” of various specified types. Respondent denies that Complainant’s use of its BUGOUT trademark extends beyond the DOMESTIC INSECTICIDES listed in the Trademark Registration.
BUG and OUT are common English words. The mark BUGOUT is descriptive when used for bug sprays, worthy of minimal protection in the absence of a showing of secondary meaning. Complainant’s Trademark Registration does not convey the right to preempt any and all uses of this common phrase.
Respondent has
not, is not, and does not intend to use the <bugout.com> domain
name in the domestic insecticide business. Respondent does not compete with Complainant
in any way. There is no likelihood of
any consumer confusion between the Parties regarding the source, origin,
sponsorship or affiliation of their goods or services.
BUG OUT is also a popular slang term meaning “go away” or “leave” or “hit the
road” or “split” or “depart” or the like. This popular meaning is the motivation for
Respondent’s acquisition of the disputed domain name <bugout.com>
at a public auction as set forth in greater detail below.
Respondent denies the adequacy of any proof that
the domain name <bugout.com> has been associated with and
continuously used by Complainant IQ Products Company to identify the source or
origin of its goods or services as alleged in the Complaint. Complainant offers no proof of such use of the
domain name per se. Complainant’s
proof tends to disprove rather than support its claim to a proprietary interest
in the <bugout.com> domain
name. For example, the web screen
snapshots attached to the Complaint specifically show
that the domain name <bugout.com> was not in fact used for
Complainant’s web site as alleged. These
web pages show advertisements for IQ Products domestic insecticides, but the
domain name being used for them is and not <bugout.com>. There is no proof that consumers would be led
to Complainant’s website if they used the web address in a browser.
A Google search for the term “BugOut” returns <bugsout.com> for the East
Coast Premier VW Volkswagen Show; “Bug Outs” for various events, including auto
racing for Volkswagens; Bug-out Outdoor wear; a Bugout Dog Bowl; Bugout Bags;
various goods and services on the “SurvivalRing” (get ready to flee) and many
more. Respondent maintains several advertising
supported social networking community web sites. An example is the music community site
<www.raves.com>. Prior to any
notice of these proceedings, Respondent bid on the transfer of the name from a
third party at a public auction hosted by the then owner of the domain.
Respondent’s purchased the <bugout.com>
domain name at auction for $5,200 on July 15, 2007. This was more than a month after the
expiration of the Complainant’s domain name registration for <bugout.com>.
Respondent acquired the <bugout.com> domain with the intent to use
it in a new travel related social networking site. Respondent already had the technical
capability, staff, know how and resources to build and maintain such a social
networking site. The theme of the
website will center on spontaneous vacation plans. This website will be a free, advertiser
supported travel related service for a user community that will share
spontaneous travel ideas. Respondent
believes that the domain name <bugout.com> is an ideal platform for
those who wish to “bug out” and get away from it all for a while.
Respondent did not acquire the domain <bugout.com>
for the purpose of selling, renting, or otherwise transferring the domain name
registration to Complainant. Respondent
does not intend to sell the domain name to Complainant or any competitor of Complainant.
The domain was acquired in good faith
and for valuable consideration for Respondent’s use in his business as stated
above. Respondent had no knowledge of
Complainant or its BUGOUT insecticides at any time prior to the initiation of
these proceedings.
Respondent did not register the domain name in order to prevent the owner of
the trademark from reflecting the mark in a corresponding domain name.
Respondent is not attempting to attract Internet
users to his <bugout.com>
domain name, or any other website, by creating confusion with
Complainant’s mark as to the source, sponsorship, affiliation, or endorsement
of Respondent’s web site or location, or of a product or service on Respondent’s
web site or location. The Parties do not
compete. There is no similarity between the goods or services of the Parties. There is no likelihood of confusion between
the Parties or their products or services.
FINDINGS
Complainant owns a valid trademark in the mark BUGOUT for aerosol Insect Repellent, domestic insecticides in the nature of Flea and Tick sprays for application directly to pets, Ant and Roach domestic insecticide sprays and foggers, Wasp and Hornet domestic insecticide sprays and foggers, and Flying Insect domestic insecticide sprays and foggers.
The at-issue domain name’s second level is
textually identical to Complainant’s claimed trademark.
“Bug Out” is a slang
term meaning “go away” or “leave” or “hit the road” or “split” or “depart” or
the like.
Respondent has plans to
use the at-issue domain name in a manner that is does not compete with Complainant.
DISCUSSION
Paragraph 15(a) of the Rules for Uniform Domain
Name Dispute Resolution Policy (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 the 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 the Respondent
is identical or confusingly similar to a trademark or service mark in which the
Complainant has rights;
(2) the 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.
Complainant holds a registration for the
trademark BUGOUT with the United States Patent and Trademark Office and has
submitted evidence sufficient to establish rights in such mark for purposes of
Policy ¶ 4(a)(i).
See
Respondent’s <bugout.com>
domain name is identical to Complainant’s BUGOUT mark. Respondent’s domain name contains
Complainant’s entire BUGOUT mark and merely adds the generic top-level domain
“.com.” Therefore, Respondent’s <bugout.com>
domain name is identical to Complainant’s mark pursuant to Policy ¶ 4(a)(i). See
Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that
the top level of the domain name such as “.net” or “.com” does not affect the
domain name for the purpose of determining whether it is identical or
confusingly similar); see also Gardline Surveys Ltd. v. Domain Fin. Ltd.,
FA 153545 (Nat. Arb. Forum May 27, 2003) (“The addition of a top-level domain
is irrelevant when establishing whether or not a mark is identical or
confusingly similar, because top-level domains are a required element of every
domain name.”).
Moreover, Respondent does not dispute this element of the
Policy. Therefore, the Panel finds that
the Complainant has rights in a trademark that is identical to the at-issue
domain name.
Under paragraph 4(a)(ii) of the Policy Complainant must first make out a prima facie showing that Respondent lacks rights or legitimate interests in the disputed domain name. The threshold for such showing is low. See Starwood Hotels & Resorts Worldwide, Inc. v. Samjo CellTech.Ltd, FA 406512 (Nat. Arb. Forum Mar. 9, 2005). Once a prima facie case is established, the burden then shifts to Respondent who must demonstrate that he nevertheless has rights or legitimate interests in the at-issue domain name. Complainant contends that it did not authorize Respondent to use the <bugout.com> domain name. Except thought his use of the domain name, Respondent is neither affiliated with, nor commonly known as, BUGOUT. Therefore, Complainant has satisfied its light initial burden.
Respondent claims that he
registered the <bugout.com> domain name for the purpose of developing social
networking community websites. There is
no contrary evidence presented by Complainant. Nor are
there any adverse inferences found in the submissions of Respondent. The fact that the domain name does not
currently resolve to such a website may be telling, but without more it is not
sufficient to discredit Respondent’s claims.
Therefore, the Panel finds that the Respondent has used the <bugout.com>
domain name in connection with a bona
fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a
legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Kur-
und Verkehrsverein St. Moritz v. StMoritz.com, D2000-0617 (WIPO Aug. 17,
2000) (finding a bona fide use of the <stmoritz.com> domain name
where it resolved it to a website that provided information about the city of
St. Moritz, as well as other countries, general news, and net cafes); see also Lee Procurement Solutions Co. v. getLocalNews.com, Inc., FA
366270 (Nat. Arb. Forum Jan. 7, 2005) (finding that the respondent used the
<bettendorfnews.com> domain name in connection with a bona fide
offering of goods or services by hosting “interactive Internet newspapers that
allow[ed] the public to post articles, stories and comments directly to its
site”).
Complaint’s rights in its mark do not extend beyond the class of goods in which the mark is registered. There is no showing that the domain name is being used or will be used in a manner that is commercially adverse to Complainant. Furthermore, Respondent’s domain name is comprised of a common term. Therefore, and for the other reasons discussed above, Respondent has rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). See Energy Source Inc. v. Your Energy Source, FA 96364 (Nat. Arb. Forum Feb. 19, 2001) (finding that the respondent has rights and legitimate interests in the domain name where “Respondent has persuasively shown that the domain name is comprised of generic and/or descriptive terms, and, in any event, is not exclusively associated with Complainant’s business).
Complainant presents no evidence that Respondent has acted in bad faith with regard to the registration and use of the at-issue domain name. Complainant merely reports that it cannot find any reason for Respondent to register its trademarked name as a domain name other than for the purposes of selling it, renting, or otherwise transferring the domain name registration to Complainant or one of its competitors. Finding “no other reason” is not a reason. It is speculation. Therefore, Complainant fails to meet its burden of proof regarding bad faith registration and use under Policy ¶ 4(a)(iii). See Starwood Hotels & Resorts Worldwide, Inc. v. Samjo CellTech.Ltd, FA 406512 (Nat. Arb. Forum Mar. 9, 2005) (finding that the complainant failed to establish that respondent registered and used the disputed domain name in bad faith because mere assertions of bad faith are insufficient for a complainant to establish Policy ¶ 4(a)(iii)); see also Graman USA Inc. v. Shenzhen Graman Indus. Co. FA 133676 (Nat. Arb. Forum Jan. 16, 2003) (finding that general allegations of bad faith without supporting facts or specific examples do not supply a sufficient basis upon which the panel may conclude that the respondent acted in bad faith). Nowhere in the parties’ submissions is there any indication that Respondent acted in any manner inconsistent with the legitimate use of the domain name or had any bad faith intent.
Therefore, the Panel finds that the Respondent has not registered or used the at-issue domain name in bad faith.
DECISION
Having established all three elements required under the ICANN Policy,
the Panel concludes that relief shall be DENIED.
Paul M. DeCicco, Panelist
Dated: October 10, 2007
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