Country Hedging, Inc. v. CHI
Claim Number: FA1101001366754
Complainant is Country Hedging, Inc. (“Complainant”), represented by William Schultz of Merchant & Gould, P.C., Minnesota, USA. Respondent is CHI (“Respondent”), Minnesota, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <chigm.com>, registered with GoDaddy.com, Inc.
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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on January 10, 2011; the National Arbitration Forum received payment on January 11, 2011.
On Jan 11, 2011, GoDaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <chigm.com> domain name is registered with GoDaddy.com, Inc. and that Respondent is the current registrant of the name. GoDaddy.com, Inc. has verified that Respondent is bound by the GoDaddy.com, Inc. 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 January 17, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 7, 2011 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@chigm.com. Also on January 17, 2011, the Written Notice of the Complaint, notifying Respondent of the email 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 National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On February 9, 2011, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Bruce E. Meyerson 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" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. 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 <chigm.com> domain name is confusingly similar to Complainant’s CHI COMPASS mark.
2. Respondent does not have any rights or legitimate interests in the <chigm.com> domain name.
3. Respondent registered and used the <chigm.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Country Hedging, Inc., is the commodity brokerage subsidiary of CHS Inc., a farmer-owned cooperative with clients in 25 states and other countries around the world. Complainant works with agricultural products and commercial clients to provide education and information resources so that its clients can make marketing decisions for their businesses. Complainant owns a trademark registration with the United States Patent and Trademark Office (“USPTO”) for the CHI COMPASS mark (Reg. No. 1,922,348 issued September 26, 1995).
Respondent, CHI, registered the <chigm.com> domain name on February 10, 2010. The disputed domain name resolves to a website that attempts to fraudulently pass itself off as Complainant by copying Complainant’s website in its entirety, with the goal of collecting personal information from consumers.
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.
Complainant owns a trademark registration with the USPTO for the CHI COMPASS mark (Reg. No. 1,922,348 issued September 26, 1995). The Panel finds that a USPTO trademark registration sufficiently establishes Complainant’s rights in the CHI COMPASS mark for the purposes of Policy ¶ 4(a)(i). See Paisley Park Enters. v. Lawson, FA 384834 (Nat. Arb. Forum Feb. 1, 2005) (finding that the complainant had established rights in the PAISLEY PARK mark under Policy ¶ 4(a)(i) through registration of the mark with the USPTO); see also Reebok Int’l Ltd. v. Santos, FA 565685 (Nat. Arb. Forum Dec. 21, 2005) (finding trademark registration with the USPTO was adequate to establish rights pursuant to Policy ¶ 4(a)(i)).
Complainant argues that Respondent’s <chigm.com> domain name is confusingly similar to Complainant’s CHI COMPASS mark because the only differences are the deletion of the term “compass,” the addition of the letters “gm”—likely an abbreviation for “grain marketing”—and the generic top-level domain (“gTLD”) “.com.” The Panel finds that deleting a term from Complainant’s mark and adding letters—whether an abbreviation or only an indiscriminate string of letters—does not negate a finding of confusing similar under Policy ¶ 4(a)(i). See Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (holding that “the Domain Name is confusingly similar to Complainant’s ‘TESCO PERSONAL FINANCE’ mark in that it merely omits the descriptive term ‘personal.’”); see also Kelson Physician Partners, Inc. v. Mason, CPR003 (CPR 2000) (finding that <kelsonmd.com> is identical or confusingly similar to the complainant’s federally registered service mark, KELSON). The Panel also finds that the presence of the gTLD “.com” does not differentiate the disputed domain name from Complainant’s mark. See Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (finding that the mere addition of the generic top-level domain “.com” is insufficient to differentiate a disputed domain name from a mark). The Panel therefore finds that Respondent’s <chigm.com> domain name is confusingly similar to Complainant’s CHI COMPASS mark for the purposes of Policy ¶ 4(a)(i).
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Complainant alleges that Respondent lacks rights and legitimate interests in the disputed domain name. Pursuant to Policy ¶ 4(a)(ii), Complainant must put forth a prima facie case in regard to this assertion. Subsequently, the burden shifts to Respondent to demonstrate that it does possess rights and legitimate interests in the disputed domain name. In the instant proceeding, the Panel concludes that Complainant has sufficiently established a prima facie case. Respondent’s failure to respond results in an inference by the Panel that Respondent lacks any rights and legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). See America Online, Inc. v. AOL Int’l, D2000-0654 (WIPO Aug. 21, 2000) (finding no rights or legitimate interests where the respondent fails to respond); see also Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum Dec. 31, 2002) (“Respondent’s failure to respond not only results in its failure to meet its burden, but also will be viewed as evidence itself that Respondent lacks rights and legitimate interests in the disputed domain name.”). The Panel elects, however, to consider the evidence presented in light of the Policy ¶ 4(c) factors in order to make an independent determination of whether Respondent has any rights or legitimate interests in the disputed domain name.
Complainant contends that Respondent is not commonly known by the <chigm.com> domain name. Complainant asserts that Respondent has no connection to Complainant and that Complainant has not licensed Respondent to use Complainant’s mark. Although the WHOIS information for the disputed domain name lists the registrant as “CHI,” Complainant alleges that Respondent has falsified this WHOIS information in order to create the appearance that Respondent is commonly known by the disputed domain name. The Panel accordingly finds that, without other supporting evidence showing a connection between Respondent and the disputed domain name, the WHOIS information alone is insufficient to prove that Respondent is commonly known by the disputed domain name for the purposes of Policy ¶ 4(c)(ii). The Panel thus concludes that Respondent is not commonly known as the <chigm.com> domain name and does not possess rights and legitimate interests under Policy ¶ 4(c)(ii). 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 Yahoo! Inc. v. Dough, FA 245971 (Nat. Arb. Forum May 5, 2004) (finding that although “the WHOIS information for the <yasexhoo.com> domain name states that the registrant is YASEXHOO . . . this alone is insufficient to show that Respondent is commonly known by the domain name”).
Complainant alleges that Respondent uses the <chigm.com> domain name in connection with a fraudulent scheme of using Complainant’s mark and images to pass itself off as Complainant, doing business as “Country Hedging, Inc. Asia.” Complainant asserts that Respondent’s resolving website copies Complainant’s website wholesale, including the photos, logos, and verbiage. Complainant contends that Respondent falsely claims to be a subsidiary of CHS Inc., like Complainant. Complainant asserts that on Respondent’s resolving website, however, Respondent inserts its own contact information in an effort to intentionally collect personal information from unsuspecting customers and Internet users. The Panel finds that Respondent’s efforts to pass itself off as Complainant as part of a fraudulent scheme to collect Internet users’ personal information is evidence that Respondent is not making a bona fide offering of goods or services or a legitimate noncommercial or fair use of the <chigm.com> domain name under Policy ¶ 4(c)(i) and ¶ 4(c)(iii). See American 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 Vivendi Universal Games v. Ballard, FA 146621 (Nat. Arb. Forum Mar. 13, 2002) (stating that where the respondent copied the complainant’s website in order to steal account information from the complainant’s customers, that the respondent’s “exploitation of the goodwill and consumer trust surrounding the BLIZZARD NORTH mark to aid in its illegal activities is prima facie evidence of a lack of rights and legitimate interests in the disputed domain name”).
The Panel finds Policy ¶ 4(a)(ii) has been satisfied.
Complainant alleges that Respondent uses Complainant’s mark in the <chigm.com> domain name and copies Complainant’s logos and images on the resolving website in an effort to attract Internet users seeking Complainant. Complainant asserts that the similarity between Complainant’s mark and the disputed domain name, as well as between Complainant’s and Respondent’s websites, creates a likelihood of confusion among Internet users as to the source and affiliation of Respondent’s website. As Respondent uses the disputed domain name and resolving website to collect user information, Respondent presumably profits from this scheme. The Panel finds these activities indicate bad faith registration and use under Policy ¶ 4(b)(iv). See Perot Sys. Corp. v. Perot.net, FA 95312 (Nat. Arb. Forum Aug. 29, 2000) (finding bad faith where the domain name in question is obviously connected with the complainant’s well-known marks, thus creating a likelihood of confusion strictly for commercial gain); see also Anne of Green Gables Licensing Auth., Inc. v. Internetworks, AF-0109 (eResolution June 12, 2000) (finding that the respondent violated Policy ¶ 4(b)(iv) because the respondent admittedly used the complainant’s well-known mark to attract users to the respondent's website).
Complainant asserts that Respondent aims to pass itself off as Complainant by making use of Complainant’s CHI COMPASS mark and by copying Complainant’s website entirely at the <chigm.com> domain name. Complainant argues that Respondent acts in this manner in order to perpetuate a fraudulent scheme to acquire personal information of Internet users. The Panel finds that these actions indicate bad faith registration and use under Policy ¶ 4(a)(iii). See Wells Fargo & Co. v. Mihael, FA 605221 (Nat. Arb. Forum Jan. 16, 2006) (“Complainant asserts . . . that . . . Respondent arranged for it to resolve to a web site closely resembling a legitimate site of Complainant . . . the purpose of which is to deceive Complainant’s customers into providing to Respondent their login identification, social security numbers, and/or account information and Personal Identification Numbers…. The Panel finds that Respondent’s behavior, as alleged, constitutes bad faith registration and use of the subject domain name pursuant to Policy ¶ 4(a)(iii).”); see also Capital One Fin. Corp. & Capital One Bank v. Howel, FA 289304 (Nat. Arb. Forum Aug. 11, 2004) (complainant’s mark “is being used to redirect Internet users to a website that imitates Complainant’s credit application website, and it is being used to fraudently [sic] acquire personal information from Complainant’s clients. Respondent’s use of the domain name supports findings of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”).
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 <chigm.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: February 21, 2011
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page