Cargill, Incorporated v. Above.com Domain Privacy
Claim Number: FA1106001395984
Complainant is Cargill, Incorporated (“Complainant”), represented by William D. Schultz of Merchant & Gould P.C., Minnesota, USA. Respondent is Above.com Domain Privacy (“Respondent”), Australia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <nutrenapoultryfeeds.com>, registered with ABOVE.COM PTY LTD.
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on June 28, 2011; the National Arbitration Forum received payment on June 28, 2011.
On June 28, 2011, ABOVE.COM PTY LTD. confirmed by e-mail to the National Arbitration Forum that the <nutrenapoultryfeeds.com> domain name is registered with ABOVE.COM PTY LTD. and that Respondent is the current registrant of the name. ABOVE.COM PTY LTD. has verified that Respondent is bound by the ABOVE.COM PTY LTD. 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 June 29, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 19, 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@nutrenapoultryfeeds.com. Also on June 29, 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 July 25, 2011, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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:
Complainant is an international marketer of food, agricultural, financial and industrial products and services.
Complainant owns the NUTRENA trademark, which it has used in the promotion and advertising of a wide range of products and services dating from 1920.
Complainant holds trademark registrations for its NUTRENA mark, on file with the United States Patent and Trademark Office (“USPTO”) (including Reg. No. 143,400, registered May 31, 1921).
Respondent registered the <nutrenapoultryfeeds.com> domain name on January 18, 2011.
The disputed domain name resolves to a directory website, which features links to third-party commercial websites competing with Complainant’s feed and agricultural services business.
1.Respondent’s
<nutrenapoultryfeeds.com> domain name is confusingly similar to
Complainant’s NUTRENA mark.
Respondent is not commonly known by the <nutrenapoultryfeeds.com> domain name, and Respondent has not received permission to use Complainant’s NUTRENA trademark in its domain name.
2.Respondent
does not have any rights to or legitimate interests in the domain name
<nutrenapoultryfeeds.com>.
3.Respondent
registered and uses the <nutrenapoultryfeeds.com> domain name in
bad faith.
B. Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a trademark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Respondent in bad faith.
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 a respondent’s failure to respond allows all reasonable inferences of fact in the allegations of a 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)i. the domain name registered
by Respondent is identical or confusingly similar to a trademark or service
mark in which Complainant has rights; and
(2)ii. Respondent has no rights or
legitimate interests in respect of the domain name; and
(3)iii. the domain name has been
registered and is being used in bad faith.
Complainant has established rights in the NUTRENA trademark under Policy ¶ 4(a)(i) by reason of its registration of the mark with a national trademark authority, the USPTO. See Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (finding that a trademark registration adequately demonstrates a complainant’s rights in a mark under Policy ¶ 4(a)(i)); see also Paisley Park Enters. v. Lawson, FA 384834 (Nat. Arb. Forum Feb. 1, 2005) (finding that a complainant had established rights in the PAISLEY PARK mark under Policy ¶ 4(a)(i) through registration of the mark with the USPTO).
Complainant is not required to register its mark in the country where Respondent resides or operates. See Renaissance Hotel Holdings, Inc. v. Renaissance Cochin, FA 932344 (Nat. Arb. Forum Apr. 23, 2007) (finding that it does not matter whether a complainant has registered its trademark in the country in which a respondent resides, only that it can establish such rights in some jurisdiction); see also Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007) (finding that it is irrelevant whether a complainant has registered its trademark in the country of a respondent’s residence).
Respondent’s <nutrenapoultryfeeds.com> domain name is confusingly similar to Complainant’s NUTRENA trademark. Respondent uses Complainant’s entire NUTRENA mark within the domain name and alters it only by adding the descriptive words “poultry” and “feeds,” which reference Complainant’s food and agricultural products business, and by adding the generic top-level domain (“gTLD”) “.com.” These alterations of the mark in forming the contested domain name do not avoid a finding of confusing similarity under the standards of the Policy. See Miller Brewing Co. v. Domain Active Pty. Ltd., FA 243606 (Nat. Arb. Forum Apr. 23, 2004) (finding that the <millerbeers.com> domain name was confusingly similar to a complainant’s MILLER mark, because:
[t]he addition of a descriptive term that describes Complainant’s business to Complainant’s registered mark, does not remove the domain from the realm of confusing similarity with regard to Policy ¶ 4(a)(i).
Similarly, the affixation of a gTLD to the mark of another in forming a domain name does not distinguish the domain name from the mark. See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis).
Therefore, the Panel finds that Respondent’s <nutrenapoultryfeeds.com> domain name is confusingly similar to Complainant’s NUTRENA trademark pursuant to Policy ¶ 4(a)(i).
Complainant contends that Respondent has no rights to or legitimate interests in the disputed domain name. Under Policy ¶ 4(a)(ii), Complainant has the initial burden of establishing prima facie that Respondent has no rights to or legitimate interests in the contested domain name. See Domtar, Inc. v. Theriault., FA 1089426 (Nat. Arb. Forum Jan. 4, 2008):
It is well established that, once a complainant has made out a prima facie case in support of its allegations, the burden shifts to respondent to show that it does have rights or legitimate interests pursuant to paragraph 4(a)(ii) of the Policy.
Complainant has made a prima facie case under this head of the Policy. Respondent’s failure to respond to the allegations of the Complaint filed in this proceeding permits us, without more, to presume that Respondent has no rights to or legitimate interests in the contested domain name under Policy ¶ 4(a)(ii). See Parfums Christian Dior v. QTR Corp., D2000-0023 (WIPO Mar. 9, 2000) (finding that by not submitting a response, a respondent failed to invoke any circumstance which could demonstrate its rights to or legitimate interests in a disputed domain name).
Nonetheless, we will review the evidence of record, in light of the several considerations set out in Policy ¶ 4(c), to determine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the contested domain name which are cognizable under the Policy.
We begin by observing that Complainant alleges, and Respondent does not deny, that Respondent is not commonly known by the disputed domain name <nutrenapoultryfeeds.com>, and that Respondent has not received permission to use Complainant’s NUTRENA trademark in that domain name. Moreover, the WHOIS information for the contested domain lists the registrant only as “Above.com Domain Privacy,” which does not resemble the disputed domain name. On this record, we must conclude that Respondent is not commonly known by the <nutrenapoultryfeeds.com> domain name so as to have demonstrated that it has rights to or legitimate interests in the contested domain name within the meaning of Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that a respondent was not commonly known by the <coppertown.com> domain name, and so had no rights to or legitimate interests in that domain under Policy ¶ 4(c)(ii), where there was no evidence in the record, including the relevant WHOIS information, suggesting that that respondent was commonly known by the disputed domain name); see also Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that a respondent was not commonly known by the disputed domain names, and therefore had no rights to or legitimate interests in those domains under Policy ¶ 4(c)(ii), where the pertinent WHOIS information, as well as all other information in the record, gave no indication that that respondent was commonly known by the disputed domain names, and where a complainant had not authorized that respondent to register a domain name containing its mark).
We also note that Complainant asserts, without objection from Respondent, that Respondent’s domain name resolves to a directory website featuring third-party links to websites of enterprises which compete with Complainant’s feed and agriculture business. In the circumstances here presented, we may comfortably presume that Respondent receives click-through fees from the visits of Internet users to those third-party links. Respondent’s use of the disputed domain name in this manner is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Expedia, Inc. v. Compaid, FA 520654 (Nat. Arb. Forum Aug. 30, 2005) (finding that a respondent’s use of the <expediate.com> domain name to redirect Internet users to a website featuring links to travel services that competed with the business of a complainant was not 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 also Royal Bank of Scotland Grp plc et al. v. Demand Domains, FA 714952 (Nat. Arb. Forum Aug. 2, 2006) (finding that the operation of a commercial web directory displaying links to third-party websites was not a use 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), where a respondent presumably received “click-through” fees for each consumer it redirected to other websites).
The Panel thus finds that Policy ¶ 4(a)(ii) has been satisfied.
It is evident from the record that Respondent registered and is using the <nutrenapoultryfeeds.com> domain name, which is confusingly similar to Complainant’s NUTRENA trademark, to disrupt Complainant’s business. Respondent’s registration and use of the disputed domain name in the manner alleged in the Complaint is therefore evidence of bad faith registration and use of the domain under Policy ¶ 4(b)(iii). See Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (concluding that the use of a domain name confusingly similar to the mark of another to attract Internet users to a directory website containing links to the websites of a complainant’s commercial competitors represents bad faith registration and use under Policy ¶ 4(b)(iii)); see also Persohn v. Lim, FA 874447 (Nat. Arb. Forum Feb. 19, 2007) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(iii) where a respondent used a disputed domain name to operate a commercial search engine with links to the websites of a complainant’s business competitors).
In addition, the website resolving from the <nutrenapoultryfeeds.com> domain name, which is confusingly similar to Complainant’s NUTRENA trademark, creates a likelihood of confusion as to the possibility of Complainant’s association with the disputed domain name and its featured links. Because Respondent presumably collects click-through fees from the visits of Internet users to the displayed at the website, thus to profit from such confusion, Respondent’s registration and use of the disputed domain name also constitutes evidence of bad faith under Policy ¶ 4(b)(iv). See Zee TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006) (finding that a respondent engaged in bad faith registration and use of a domain name that was confusingly similar to a complainant’s mark by using it to offer links to third-party websites featuring services similar to those offered by that complainant); see also T-Mobile USA, Inc. v. utahhealth, FA 697821 (Nat. Arb. Forum June 7, 2006) (holding that the registration and use of a domain name confusingly similar to a complainant’s mark to direct Internet traffic to a commercial “links page” in order to profit from click-through fees or other revenue sources constitutes evidence of bad faith under Policy ¶ 4(b)(iv)).
For these reasons, the Panel finds that Complainant has satisfied its obligations of proof under Policy ¶ 4(a)(iii).
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be, and it is hereby, GRANTED.
Accordingly, it is Ordered that the <nutrenapoultryfeeds.com> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: July 26, 2011
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