Alltech, Inc. v. Sean Conners Inc
Claim Number: FA1112001419033
Complainant is Alltech, Inc. (“Complainant”), represented by Robert Simpson of Alltech, Inc., Kentucky, USA. Respondent is Sean Conners Inc (“Respondent”), represented by Dylan Marsh, Kentucky, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <alltechangus.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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on December 8, 2011; the National Arbitration Forum received payment on December 8, 2011.
On December 8, 2011, GoDaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <alltechangus.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 December 14, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 3, 2012 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@alltechangus.com. Also on December 14, 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 January 11, 2012, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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 <alltechangus.com> domain name is confusingly similar to Complainant’s ALLTECH mark.
2. Respondent does not have any rights or legitimate interests in the <alltechangus.com> domain name.
3. Respondent registered and used the <alltechangus.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Alltech, Inc., develops biochemistry and fermentation technology to improve nutrition in the animal feed industry. Complainant holds numerous trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the ALLTECH mark (e.g., Reg. No. 2,268,156 registered August 10, 1999).
Respondent, Sean Conners Inc, registered the disputed domain name on July 21, 2010. The disputed domain name resolves to the website of Critchfield Meats, a third party that Complainant partnered with to offer meat products.
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 claims rights in the ALLTECH mark based on it registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,268,156 registered August 10, 1999). The Panel finds registration of the mark with the USPTO to be sufficient evidence to establish rights in the mark pursuant to Policy ¶ 4(a)(i). 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 Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004) (“Registration of the NASAL-AIRE mark with the USPTO establishes Complainant's rights in the mark.”).
Complainant contends that the <alltechangus.com> domain name is confusingly similar to Complainant’s ALLTECH mark for the purposes of Policy ¶ 4(a)(i). The disputed domain name wholly includes Complainant’s mark, while adding the descriptive term “angus” and the generic top-level domain (“gTLD”) “.com.” Complainant has recently partnered with Critchfield Meats to create ALLTECH ANGUS-branded meat products. Given this information, Respondent’s addition of the term “angus” to Complainant’s mark qualifies as the addition of a term descriptive of Complainant’s business. Previous panels have found that the addition of a term bearing an obvious relationship to a complainant’s business does not distinguish a disputed domain name from the complainant’s mark under Policy ¶ 4(a)(i). See Space Imaging LLC v. Brownell, AF-0298 (eResolution Sept. 22, 2000) (finding confusing similarity where the respondent’s domain name combines the complainant’s mark with a generic term that has an obvious relationship to the complainant’s business). It is also well-established that the affixation of a gTLD is not relevant to Policy ¶ 4(a)(i) confusingly similar comparisons. See Isleworth Land Co. v. Lost in Space, SA, FA 117330 (Nat. Arb. Forum Sept. 27, 2002) (“[I]t is a well established principle that generic top-level domains are irrelevant when conducting a Policy ¶ 4(a)(i) analysis.”). Based on the foregoing, the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark for the purposes of Policy ¶ 4(a)(i).
The Panel finds the elements of Policy ¶ 4(a)(i) to have been satisfied.
In order to prevail in a claim brought under the Policy, Complainant must first present the Panel with a prima facie case as to why Respondent lacks rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). Because Complainant has satisfied its burden, Respondent now carries the burden of showing that it does in fact have rights or legitimate interests in the disputed 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.”). Respondent has failed to submit a Response, thus failing to satisfy its burden and allowing the Panel to infer that Respondent lacks rights and legitimate interests. See Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that the respondents’ failure to respond can be construed as an admission that they have no legitimate interest in the domain names). The Panel will examine the record, however, in order to determine whether Respondent does have such rights or legitimate interests according to the Policy ¶ 4(c) factors.
Complainant urges that Respondent is not commonly known by the disputed domain name within the meaning of Policy ¶ 4(c)(ii). The WHOIS information identifies the domain name registrant as “Sean Conners Inc.” The Panel fails to find any similarity to the <alltechangus.com> domain name. Because Respondent has failed to submit a Response, there is no evidence in the record that would indicate that Respondent is commonly known by the disputed domain name. Without such evidence, the Panel finds that Respondent is not commonly known by the disputed domain name for the purposes of Policy ¶ 4(c)(ii) See St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (concluding a respondent has no rights or legitimate interests in a disputed domain name where there was no evidence in the record indicating that the respondent was commonly known by the disputed domain name); 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 Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence in the record).
Complainant asserts that Respondent is using the disputed domain name in violation of both Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii). The disputed domain name resolves to the website of Critchfield Meats, a third-party company that Complainant partnered with to offer meat products. Due to this partnership, the Panel treats the disputed domain name as similar to a domain name resolving to Complainant’s own website. Previous panels have found that the resolution of a disputed domain name to a complainant’s website can be considered neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Direct Line Ins. plc v. Low-cost-domain, FA 1337658 (Nat. Arb. Forum Sept. 8, 2010) (“The Panel finds that using Complainant’s mark in a domain name over which Complainant has no control, even if the domain name redirects to Complainant’s actual site, is not consistent with the requirements of Policy ¶ 4(c)(i) or ¶ 4(c)(iii) . . .”); see also Better Existence with HIV v. AAA, FA 1363660 (Nat. Arb. Forum Jan. 25, 2011) (finding that “even though the disputed domain name still resolves to Complainant’s own website, Respondent’s registration of the disputed domain name in its own name fails to create any rights or legitimate interests in Respondent associated with the disputed domain name under Policy ¶ 4(a)(ii)”). Accordingly, the Panel concludes that Respondent’s use of the disputed domain name does not satisfy either Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii).
The Panel finds the elements of Policy ¶ 4(a)(ii) to have been satisfied.
The Panel notes that the examples of bad faith registration and use prescribed in Policy ¶ 4(b) are intended to be illustrative and not exhaustive. See Digi Int’l Inc. v. DDI Sys., FA 124506 (Nat. Arb. Forum Oct. 24, 2002) (determining that Policy ¶ 4(b) sets forth certain circumstances, without limitation, that shall be evidence of registration and use of a domain name in bad faith) Thus, the Panel may find bad faith beyond the perimeters of Policy ¶ 4(b). See CBS Broad., Inc. v. LA-Twilight-Zone, D2000-0397 (WIPO June 19, 2000) (“[T]he Policy expressly recognizes that other circumstances can be evidence that a domain name was registered and is being used in bad faith”).
The disputed domain name resolves to the website of a third party, Critchfield Meats, that Complainant partners with to offer meat products. As noted above, the Panel treats this use of the disputed domain name as similar to a domain name resolving to Complainant’s website. Past panels have held that the registration and use of a confusingly similar disputed domain name for the purpose of resolving to Complainant’s website demonstrates bad faith registration and use. See Verizon Trademark Servs. LLC v. Boyiko, FA 1382148 (Nat. Arb. Forum May 12, 2011) (“The Panel finds that Respondent’s registration and use of the confusingly similar disputed domain name, even where it resolves to Complainant’s own site, is still registration and use in bad faith pursuant to Policy ¶ 4(a)(iii).”); see also MySpace, Inc. v. Gomez, D2007-1231 (WIPO Oct. 17, 2007) (finding bad faith when "Respondent has been using the disputed domain name to link to the Complainant’s own website. Inherent in that conduct is the risk that the Respondent may at any time cause Internet traffic to re-direct to a website that is not that of, or associated with, the Complainant."). The Panel finds that Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(a)(iii).
The Panel finds the elements of Policy ¶ 4(a)(iii) to have 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 <alltechangus.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: January 25, 2012
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