Country Hedging, Inc. v. country hedging,inc. c/o Scott Cordes
Claim Number: FA0911001293939
Complainant is Country
Hedging, Inc. (“Complainant”), represented by William Schulz, of Merchant & Gould, P.C., Minnesota,
USA. Respondent is country hedging,inc. c/o Scott Cordes (“Respondent”),
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <countryhedging.net>, registered with Fastdomain Inc.
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.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on November 10, 2009; the National Arbitration Forum received a hard copy of the Complaint on November 13, 2009.
On November 12, 2009, Fastdomain Inc. confirmed by e-mail to the National Arbitration Forum that the <countryhedging.net> domain name is registered with Fastdomain Inc. and that Respondent is the current registrant of the name. Fastdomain Inc. has verified that Respondent is bound by the Fastdomain 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 November 17, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of December 7, 2009 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 firstname.lastname@example.org by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On December 11, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Sandra J. Franklin as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <countryhedging.net> domain name is identical to Complainant’s COUNTRY HEDGING mark.
2. Respondent does not have any rights or legitimate interests in the <countryhedging.net> domain name.
3. Respondent registered and used the <countryhedging.net> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Country Hedging, Inc., holds several trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the COUNTRY HEDGING mark (e.g, Reg. No. 2,516,958 issued August 2, 2007) in connection with products and services in the field of grain marketing.
Respondent, country hedging, inc. c/o Scott Cordes, registered the <countryhedging.net> domain name on July 1, 2009. The disputed domain name resolves to a website identical to that of Complainant’s and that incorporates photos, logos and language of Complainant.
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 Complainant's undisputed representations pursuant to paragraphs 5(e), 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 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.
The Panel finds that Complainant has established rights in the COUNTRY HEDGING mark under Policy ¶ 4(a)(i) through its trademark registration with the USPTO. See Expedia, Inc. v. Tan, FA 991075 (Nat. Arb. Forum June 29, 2007) (“As the [complainant’s] mark is registered with the USPTO, [the] complainant has met the requirements of Policy ¶ 4(a)(i).”); see also Microsoft Corp. v. Burkes, FA 652743 (Nat. Arb. Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”).
Respondent’s <countryhedging.net> domain name is identical to Complainant’s
COUNTRY HEDGING mark pursuant to Policy ¶ 4(a)(i). Respondent’s disputed domain name merely
deletes the space in Complainant’s mark and adds the generic top-level domain
(“gTLD”) “.net.” The Panel finds that
the deletion of the space in Complainant’s mark does not distinguish a disputed
domain name from a mark. See George Weston Bakeries Inc.
v. McBroom, FA 933276
(Nat. Arb. Forum Apr. 25, 2007) (finding that eliminating
the space between terms of a mark still rendered the <gwbakeries.mobi>
domain name identical to the complainant’s GW BAKERIES mark); see also Wembley Nat’l Stadium Ltd. v. Thomson, D2000-1233 (WIPO Nov. 16,
2000) (finding that the domain name <wembleystadium.net> is identical to
the WEMBLEY STADIUM mark). The Panel
also finds that the addition of the gTLD “.net” is irrelevant in distinguishing
between the disputed domain name and a mark.
See Little Six, Inc. v. Domain For
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name. Once Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to prove it has rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). Based on the arguments made in the Complaint, the Panel finds that Complainant has established a prima facie case in support of its contentions. Respondent has failed to submit a Response to these proceedings. See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding the “complainant must first make a prima facie case that [the] respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii), and then the burden shifts to [the] respondent to show it does have rights or legitimate interests.”); see also Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name). Nevertheless, the Panel will examine the record to determine if Respondent has rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c).
The WHOIS information lists the registrant as “country hedging,inc. c/o Scott Cordes.” The Panel finds that despite the fact that the WHOIS information lists the registrant as “country hedging,inc. c/o Scott Cordes.” there is no other evidence in the record that Respondent was ever commonly known by <countryhedging.net> before the registration of the disputed domain name. See Yoga Works, Inc. v. Arpita, FA 155461 (Nat. Arb. Forum June 17, 2003) (finding that the respondent was not “commonly known by” the <shantiyogaworks.com> domain name despite listing its name as “Shanti Yoga Works” in its WHOIS contact information because there was “no affirmative evidence before the Panel that the respondent was ever ‘commonly known by’ the disputed domain name prior to its registration of the disputed domain name”); see also Nature’s Path Foods Inc. v. Natures Path, Inc., FA 237452 (Nat. Arb. Forum Apr. 2, 2004) (“In its WHOIS contact information, Respondent lists its name and its administrative contact as ‘Natures Path, Inc.’ However, since Respondent failed to respond to the Complaint, there has not been any affirmative evidence provided to the Panel showing that Respondent was commonly known by the disputed domain name prior to its registration of the domain name.”).
Respondent’s <countryhedging.net> domain name was registered on July 1, 2009. The disputed domain name resolves to a website identical to Complainant’s and incorporates photos, logos and language of Complainant in order to “phish” for personal information from Internet users. The Panel finds that Respondent’s “phishing” and attempt to pass itself off as the Complainant are not a bona fide offering of goods and services under Policy ¶ 4(c)(i) or a legitimate noncommerical or fair use under Policy ¶ 4(c)(iii). See Am. Int’l Group, Inc. v. Busby, FA 156251 (Nat. Arb. Forum May 30, 2003) (finding that the respondent attempts to pass itself off as the complainant online, which is blatant unauthorized use of the complainant’s mark and is evidence that the respondent has no rights or legitimate interests in the disputed domain name); see also Juno Online Servs., Inc. v. Nelson, FA 241972 (Nat. Arb. Forum Mar. 29, 2004) (finding that using a domain name in a fraudulent scheme to deceive Internet users into providing their credit card and personal information is not a bona fide offering of goods or services nor a legitimate noncommercial or fair use).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
The Panel finds that it may consider the totality of the circumstances when conducting a Policy ¶ 4(a)(iii) analysis, and that it is not limited to the enumerated factors in Policy ¶ 4(b). See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (“[T]he examples [of bad faith] in Paragraph 4(b) are intended to be illustrative, rather than exclusive.”).
Respondent is using the identical <countryhedging.net>
domain name to obtain personal
information from Internet users seeking Complainant’s website. The Panel finds Respondent’s use of the
identical domain name to “phish” for personal information of Complainant’s
customers is sufficient to support a finding of bad faith registration and use
under Policy ¶ 4(a)(iii). See Wells Fargo &
The Panel finds Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <countryhedging.net> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: December 23, 2009
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