Tractor Supply Co. of Texas,
LP & Tractor Supply Company v. Prachuap Bhaingern
Claim Number: FA0906001270190
PARTIES
Complainant is Tractor Supply Co. of Texas, LP & Tractor
Supply Company (“Complainant”)
represented by Justin McNaughton, of Waller
Lansden Dortch & Davis, LLP,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <tractor-supply.us>, registered with Name.com.
PANEL
The undersigned certifies that he has acted independently and
impartially and to the best of his knowledge has no known conflict in serving
as Panelist in this proceeding.
James A. Carmody, Esq., as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
(the “Forum”) electronically on June 23, 2009;
the Forum received a hard copy of the Complaint on June 24, 2009.
On June 24, 2009, Name.com confirmed by e-mail to the Forum that
the <tractor-supply.us>
domain name is registered with Name.com
and that Respondent is the current registrant of the name. Name.com
has verified that Respondent is bound by the Name.com
registration agreement and has thereby agreed to resolve domain-name disputes
brought by third parties in accordance with the U.S. Department of Commerce’s
usTLD Dispute Resolution Policy (the “Policy”).
On June 29, 2009, a Notification
of Complaint and Commencement of Administrative Proceeding (the “Commencement
Notification”), setting a deadline of July 20, 2009 by which Respondent could
file a Response to the Complaint, was transmitted to Respondent in compliance
with Paragraph 2(a) of the Rules for usTLD Dispute Resolution Policy (the
“Rules”).
Having received no Response from Respondent, the Forum transmitted to
the parties a Notification of Respondent Default.
On July 27, 2009, pursuant to Complainant’s request to have the dispute
decided by a single-member Panel, the Forum appointed James A. Carmody, Esq.,
as Panelist.
Having reviewed the communications records, the Administrative Panel
(the “Panel”) finds that the Forum has discharged its responsibility under
Paragraph 2(a) of the Rules. Therefore,
the Panel may issue its decision based on the documents submitted and in
accordance with the Policy, the Rules, the Forum’s Supplemental Rules and any
rules and principles of law that the Panel deems applicable, without the
benefit of any Response from Respondent.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
1. Respondent’s <tractor-supply.us> domain name is confusingly similar to Complainant’s TRACTOR SUPPLY CO. mark.
2.
Respondent does not have any rights or
legitimate interests in the <tractor-supply.us>
domain name.
3.
Respondent registered and used the <tractor-supply.us> domain name in
bad faith.
B. Respondent failed to submit a Response in this proceeding.
FINDINGS
Complainant, Tractor
Supply Co. of Texas, LP & Tractor Supply Company, has operated a retail
business under the TRACTOR SUPPLY CO. mark since 1938. Complainant holds several registrations of
the TRACTOR SUPPLY CO. mark with the United States Patent and Trademark Office
(“USPTO”) (i.e., Reg. No. 1,846,015 issued July 19, 1994).
Respondent registered the <tractor-supply.us> domain name on
March 31, 2009. The disputed domain name
resolves to a website that promotes and sells goods that are in direct
competition with Complainant.
DISCUSSION
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.”
In view of
Respondent's failure to submit a Response, the Panel shall decide this
administrative proceeding on the basis of the 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 and inferences set forth in the Complaint
as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc.
v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000)
(holding that the respondent’s failure to respond allows all reasonable
inferences of fact in the allegations of the complaint to be deemed true); see
also Talk City, Inc. v. Robertson,
D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is
appropriate to accept as true all allegations of the Complaint.”).
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; and
(2) the Respondent has no rights or legitimate interests in respect of
the domain name; and
(3) the domain name has been registered or is being used in bad faith.
Given the similarity between the Uniform Domain Name Dispute Resolution
Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent
as applicable in rendering its decision.
Identical
and/or Confusingly Similar
Complainant holds several
registrations of its TRACTOR SUPPLY CO. mark with the USPTO. The Panel is satisfied with Complainant’s
showing of rights in the TRACTOR SUPPLY CO. mark under Policy ¶ 4(a)(i) through
its registrations of the mark held with the USPTO. See AOL LLC v. Interrante, FA 681239
(Nat. Arb. Forum May 23, 2006) (finding that where the complainant had
submitted evidence of its registration with the USPTO, “such evidence
establishes complainant’s rights in the mark pursuant to [UDRP] ¶ 4(a)(i).”); see also Reebok Int’l Ltd. v.
Complainant asserts that the <tractor-supply.us> domain name is
confusingly similar to Complainant’s TRACTOR SUPPLY CO. mark. The <tractor-supply.us>
domain name contains a substantial portion of Complainant’s mark by merely
deleting the “
The Panel finds that Policy ¶
4(a)(i) has been satisfied.
Rights
or Legitimate Interests
Pursuant to Policy ¶ 4(a)(ii), Complainant must first make a prima facie showing that Respondent lacks rights and legitimate interests in the disputed domain name. The Panel finds that Complainant has sufficiently made its prima facie showing under Policy ¶ 4(a)(ii) in support of its allegations. The burden now shifts to Respondent and Respondent must establish that it has rights or legitimate interests in the disputed domain name. See Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“Proving that the Respondent has no rights or legitimate interests in respect of the Domain Name requires the Complainant to prove a negative. For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”); see also G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent. Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under [UDRP] ¶ 4(a)(ii).”).
There is no evidence in the record to conclude that Respondent owns any
service marks or trademarks that reflect the <tractor-supply.us>
domain name. Therefore, the Panel finds
that Respondent does not have rights and legitimate interests pursuant to
Policy ¶ 4(c)(i). See Meow Media Inc.
v. Basil, FA 113280
(Nat. Arb. Forum Aug. 20, 2002) (finding that there was no evidence that
Respondent was the owner or beneficiary of a mark that is identical to the
<persiankitty.com> domain name); see also Pepsico, Inc. v Becky,
FA 117014 (Nat. Arb. Forum Sept. 3, 2002) (holding that because Respondent did
not own any trademarks or service marks reflecting the <pepsicola.us>
domain name, it had no rights or legitimate interests pursuant to Policy ¶
4(c)(i)).
The <tractor-supply.us> domain name resolves to a website
that promotes and sells products that directly compete with Complainant’s
retail business. The Panel finds that
Respondent’s competing use of the disputed domain name is neither a bona fide offering of goods and services
under Policy ¶ 4(c)(ii) nor a legitimate noncommercial or fair use under Policy
¶ 4(c)(iv). See Metro. Life Ins. Co. v.
Bonds, FA 873143
(Nat. Arb. Forum Feb. 16, 2007) (concluding that using a confusingly similar
domain name to divert Internet users to competing websites does not represent a
bona fide offering of goods or services under UDRP ¶ 4(c)(i) or a
legitimate noncommercial or fair use under UDRP ¶ 4(c)(iii)); see also Trip Network
Inc. v. Alviera, FA 914943 (Nat. Arb.
Forum Mar. 27, 2007) (“The
Panel finds that Respondent’s operation of a website virtually identical to
Complainant’s website to offer competing travel reservation services does not
fall within the parameters of a bona fide offering of goods or services
pursuant to [UDRP] ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant
to [UDRP] ¶ 4(c)(iii)”).
Furthermore, Respondent is listed in
the WHOIS information as “Prachuap Bhaingern,” which does not indicate that Respondent is
commonly known by the <tractor-supply.us>
domain name. Respondent has not offered any evidence to
indicate otherwise. The Panel finds that
Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(iii). See Braun
Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that
the respondent was not commonly known by the disputed domain names where the
WHOIS information, as well as all other information in the record, gave no
indication that the respondent was commonly known by the disputed domain names,
and the complainant had not authorized the respondent to register a domain name
containing its registered mark); see also
M. Shanken Commc’ns v.
WORLDTRAVELERSONLINE.COM, FA
740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that the respondent was not
commonly known by the <cigaraficionada.com> domain name under UDRP ¶
4(c)(ii) based on the WHOIS information and other evidence in the record).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Registration
and Use in Bad Faith
The Panel finds that Respondent’s use of the
confusingly similar <tractor-supply.us>
domain name
to sell products that directly compete with Complainant’s retail business
disrupts Complainant’s business and constitutes bad faith registration and use
under Policy ¶ 4(b)(iii). See Spark Networks PLC v.
Houlihan, FA 653476 (Nat. Arb. Forum Apr. 18,
2006) (holding that the respondent’s registration of a domain name
substantially similar to the complainant’s AMERICAN SINGLES mark in order to
operate a competing online dating website supported a finding that respondent
registered and used the domain name to disrupt the complainant’s business under
UDRP ¶ 4(b)(iii)); see also Disney Enters., Inc.
v. Noel, FA 198805 (Nat. Arb. Forum Nov. 11, 2003) (“Respondent
registered a domain name confusingly similar to Complainant's mark to divert
Internet users to a competitor's website. It is a reasonable inference that
Respondent's purpose of registration and use was to either disrupt or create
confusion for Complainant's business in bad faith pursuant to [UDRP] ¶¶
4(b)(iii) [and] (iv).”).
Moreover, the Panel finds that Respondent’s competing use
of the confusingly similar disputed domain name creates a likelihood of
confusion as to Complainant’s affiliation with the <tractor-supply.us> domain name. Therefore, the Panel finds that such
confusion is evidence of bad faith registration and use under Policy ¶
4(b)(iv). See World Wrestling
Fed’n Entm’t, Inc. v. Ringside Collectibles, D2000-1306 (WIPO Jan. 24, 2001)
(concluding that the respondent registered and used the <wwfauction.com>
domain name in bad faith because the name resolved to a commercial website that
the complainant’s customers were likely to confuse with the source of the
complainant’s products, especially because of the respondent’s prominent use of
the complainant’s logo on the site); see
also Nokia Corp. v. Private, D2000-1271 (WIPO Nov. 3, 2000) (finding bad
faith registration and use pursuant to UDRP ¶ 4(b)(iv) where the domain name
resolved to a website that offered similar products as those sold under the
complainant’s famous mark).
The Panel finds that Policy ¶ 4(a)(iii) has been
satisfied.
DECISION
Having established all three elements required under the usTLD Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <tractor-supply.us> domain name be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: August 10, 2009
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