Tractor Supply Co. of Texas, LP and Tractor Supply Company v. Daniel Grindean / Daniel L Grindean
Claim Number: FA1108001402421
Complainant is Tractor Supply Co. of Texas, LP and Tractor Supply Company (“Complainant”), represented by Emily J. Zibart of Waller Lansden Dortch & Davis, LLP, Tennessee, USA. Respondent is Daniel Grindean / Daniel L Grindean (“Respondent”), Indiana, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <tractorsupply.us>, registered with Name.com.
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 (the “Forum”) electronically on August 8, 2011; the National Arbitration Forum received a hard copy of the Complaint on August 9, 2011.
On August 11, 2011, Name.com confirmed by e-mail to the National Arbitration Forum that the <tractorsupply.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 disputes brought by third parties in accordance with the U.S. Department of Commerce’s usTLD Dispute Resolution Policy (the “Policy”).
On August 15, 2011, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of September 4, 2011 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 National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On September 14, 2011, 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 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <tractorsupply.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 <tractorsupply.us> domain name.
3. Respondent registered and used the <tractorsupply.us> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Tractor Supply Co. of Texas, LP and Tractor Supply Company, is the owner of the TRACTOR SUPPLY CO. mark. Complainant uses its mark in connection with a chain of retail stores in the field of animal care, home improvement, recreation, apparel, among others. Complainant has multiple registrations for the TRACTOR SUPPLY CO. mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,039,473 registered January 10, 2006).
Respondent, Daniel Grindean / Daniel L Grindean, registered the disputed domain name on July 5, 2011. The <tractorsupply.us> domain name resolves to a website which displays links to Complainant and Complainant’s competitors.
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(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 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 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.
Preliminary Issue: Multiple Complainants
In the instant proceedings, Complainants, Tractor Supply Co. of Texas, LP and Tractor Supply Company, are bringing this Complaint together. usTLD Rule 3(a) states, “Any person or entity may initiate an administrative proceeding by submitting a complaint.” The National Arbitration Forum’s usTLD Supplemental Rule 1(e) defines “The Party Initiating a Complaint Concerning a Domain Name Registration” as a “single person or entity claiming to have rights to the domain name, or multiple persons or entities who have a sufficient nexus who can each claim to have rights to all domain names listed in the Complaint.” Complainant, Tractor Supply Co. of Texas, LP, is the owner of multiple registrations for the TRACTOR SUPPLY CO. mark, which it licenses to Tractor Supply Company. The Panel finds that this relationship is sufficient to establish a nexus between the Complainants and will treat them as a single entity in this proceeding, collectively referring to Complainants as “Complainant.”
The Panel finds that Complainant’s trademark registrations for TRACTOR SUPPLY CO. establish its rights in the mark pursuant to UDRP ¶ 4(a)(i). See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Ap r. 26, 2006), and Lockheed Martin Corp. v. Hoffman, FA 874152 (Nat. Arb. Forum Jan. 31, 2007), where the panel found that the registration of a mark with a federal trademark authority is a sufficient ground for the panel to find that the complainant does have rights in the mark.
The Panel finds that Respondent’s deletion of the word “Co.” from Complainant’s mark within the disputed domain name does not distinguish the domain name from the mark. See Am. Eagle Outfitters, Inc. v. Admin, FA 473826 (Nat. Arb. Forum June 22, 2005) (finding the <americaneaglestores.com> domain name to be confusingly similar to the complainant’s AMERICAN EAGLE OUTFITTERS mark); see also 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.’”). Respondent also deleted the space between the remaining words in Complainant’s mark, irrelevant for the purposes of Policy ¶ 4(a)(i). See Hannover Ruckversicherungs-AG v. Ryu, FA 102724 (Nat. Arb. Forum Jan. 7, 2001) (finding <hannoverre.com> to be identical to HANNOVER RE, “as spaces are impermissible in domain names and a generic top-level domain such as ‘.com’ or ‘.net’ is required in domain names”); see also Bond & Co. Jewelers, Inc. v. Tex. Int’l Prop. Assocs., FA 937650 (Nat. Arb. Forum Apr. 30, 2007) (finding that the elimination of spaces between terms and the addition of a gTLD do not establish distinctiveness from the complainant’s mark under UDRP ¶ 4(a)(i)).
The Panel finds that the addition of the “.us” country-code generic top-level domain (“ccTLD”) also fails to distinguish the disputed domain name from the TRACTOR SUPPLY CO. mark. See Circuit City Stores, Inc. v. Leeds, FA 139662 (Nat. Arb. Forum Feb. 2, 2003) (finding the <circuitcitystores.us> domain name to be confusingly similar to the CIRCUIT CITY mark because the presence of a top-level domain like “.us” is “inconsequential to a Policy ¶ 4(a)(i) analysis”); see also Am. Express Co. v. McWIlliam, FA 268423 (Nat. Arb. Forum July 6, 2004) (holding that the “.us” ccTLD does not negate confusing similarity under Policy ¶ 4(a)(i)). Thus, the Panel finds that the <tractorsupply.us> domain name is confusingly similar to Complainant’s TRACTOR SUPPLY CO. mark under Policy ¶ 4(a)(i).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant argues that Respondent has neither rights nor legitimate interests in the disputed domain name. Once Complainant has made a prima facie case in support of this claim, the burden shifts to Respondent to prove otherwise. 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 [UDRP].”); see also 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 [UDRP] ¶ 4(a)(ii), and then the burden shifts to [the] respondent to show it does have rights or legitimate interests.”). Complainant here has made a prima facie case. However, Respondent failed to submit a response to the Panel, allowing the Panel to infer that Respondent has no rights or legitimate interests. See Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“[Rule 14(b)] expressly provide[s] that the Panel ‘shall draw such inferences’ from the Respondent’s failure to comply with the rules ‘as it considers appropriate.”); see also Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding it appropriate for the panel to draw adverse inferences from the respondent’s failure to reply to the complaint). The Panel elects to review the record to determine whether or not Respondent has rights or legitimate interests in the disputed domain name.
There is no evidence in the record to conclude that Respondent owns any service marks or trademarks that reflect the <tractorsupply.us> domain name. Therefore, the Panel finds that Respondent does not have rights or 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 the respondent was the owner or beneficiary of a mark that is identical to the <persiankitty.us> domain name); see also Pepsico, Inc. v Becky, FA 117014 (Nat. Arb. Forum Sept. 3, 2002) (holding that because the 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)).
Complainant argues that Respondent is not commonly known by the <tractorsupply.us> domain name. In cases such as Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003), and Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006), the panel looked at the WHOIS record and the statements made by the complainant to determine whether Respondent is commonly known by the disputed domain name. Complainant here argues that Respondent is not identified by the <tractorsupply.us> domain name. The WHOIS record lists “Daniel Grindean / Daniel L Grindean” as the domain name registrant, which bears no relationship to the <tractorsupply.us> domain name. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(iii).
Complainant alleges that Respondent’s use of the disputed domain name is neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use. Panels have previously held that the use of a domain name does not fall within the scope of being either a bona fide offering of goods or services or a legitimate noncommercial or fair use where the domain name resolves to a website which features links to the complainant and to the complainant’s competitors’ websites. See ALPITOUR S.p.A. v. Albloushi, FA 888651 (Nat. Arb. Forum Feb. 26, 2007) (rejecting the respondent’s contention of rights and legitimate interests in the <bravoclub.com> domain name because the respondent was merely using the domain name to operate a website containing links to various competing commercial websites, which the panel did not find to be a use in connection with 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)); see also Skyhawke Techns., LLC v. Tidewinds Group, Inc., FA 949608 (Nat. Arb. Forum May 18, 2007) (“Respondent is using the <skycaddy.com> domain name to display a list of hyperlinks, some of which advertise Complainant and its competitors’ products. The Panel finds that this use of the disputed domain name does not constitute 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).”). The <tractorsupply.us> domain name resolves to a website which displays various links to Complainant’s website and to websites of Complainant’s competitors under headings such as “Tsc Tractor Supply,” “Farm & Barn Toilet,” and “Long Tractor Parts.” Therefore, the Panel finds that Respondent’s use of the disputed domain name is neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(ii) and 4(c)(iv).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Panels traditionally find that the display of links to a complainant and various other competing websites is disruptive and thus demonstrates bad faith under Policy ¶ 4(a)(iii). See Red Hat, Inc. v. Haecke, FA 726010 (Nat. Arb. Forum July 24, 2006) (finding that the respondent engaged in bad faith registration and use pursuant to UDRP ¶ 4(b)(iii) by using the disputed domain names to operate a commercial search engine with links to the products of the complainant and to complainant’s competitors, as well as by diverting Internet users to several other domain names); see also Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (concluding that the use of a confusingly similar domain name to attract Internet users to a directory website containing commercial links to the websites of a complainant’s competitors represents bad faith registration and use under UDRP ¶ 4(b)(iii)). Here, Respondent’s <tractorsupply.us> domain name was registered and is being used to display such links. The Panel presumes that the Internet users which come upon the disputed domain name due to its confusing similarity to Complainant’s TRACTOR SUPPLY CO. mark may choose Complainant’s competitors rather than Complainant. The Panel thus finds that Respondent’s registration and use of the disputed domain name is disruptive pursuant to Policy ¶ 4(b)(iii).
Finally, Respondent has registered and used the <tractorsupply.us> domain name in order to take advantage of the likelihood of confusion, no doubt receiving pay-per-click revenue from Complainant’s competitors, which constitutes bad faith under Policy ¶ 4(b)(iv). See Red Hat, Inc. v. Haecke, FA 726010 (Nat. Arb. Forum July 24, 2006) (finding that the respondent engaged in bad faith registration and use pursuant to UDRP ¶ 4(b)(iv) by using the disputed domain names to operate a commercial search engine with links to the products of the complainant and to complainant’s competitors, as well as by diverting Internet users to several other domain names); see also Asbury Auto. Group, Inc. v. Tex. Int’l Prop. Assocs., FA 958542 (Nat. Arb. Forum May 29, 2007) (finding that the respondent’s use of the disputed domain name to advertise car dealerships that competed with the complainant’s business would likely lead to confusion among Internet users as to the sponsorship or affiliation of those competing dealerships, and was therefore evidence of bad faith registration and use pursuant to UDRP ¶ 4(b)(iv)).
The Panel finds that 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 <tractorsupply.us> domain name be TRANSFERRED TO COMPLAINANT.
Sandra J. Franklin, Panelist
Dated: September 21, 2011
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