Cargill, Incorporated v. Ronald Kemp
Claim Number: FA1207001455923
Complainant is Cargill, Incorporated (“Complainant”), represented by Susan J. Hightower, Texas, USA. Respondent is Ronald Kemp (“Respondent”), United Kingdom.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <cargil.co>, <cargil.biz>, <cargil.org>, and <cargil.info>, registered with 1&1 INTERNET AG.
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.
Hon. Karl V. Fink (Ret.), as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on July 30, 2012; the National Arbitration Forum received payment on July 31, 2012.
On August 2, 2012, 1&1 INTERNET AG confirmed by e-mail to the National Arbitration Forum that the <cargil.co>, <cargil.biz>, <cargil.org>, and <cargil.info> domain names are registered with 1&1 INTERNET AG and that Respondent is the current registrant of the names. 1&1 INTERNET AG has verified that Respondent is bound by the 1&1 INTERNET AG 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 August 6, 2012, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 27, 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@cargil.co, postmaster@cargil.biz, postmaster@cargil.org, and postmaster@cargil.info. Also on August 6, 2012, the Written Notice of the Complaint, notifying Respondent of the e-mail 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 August 28, 2012, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. Karl V. Fink (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
B. Respondent
Respondent failed to submit a Response in this proceeding.
For the reasons set forth below, the Panel finds Complainant is entitled to the relief requested.
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."
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.
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.”).
Complainant asserts that it registered the CARGILL mark with the USPTO (e.g., Reg. No. 3,145,814 registered September 19, 2006) and the UKIPO (e.g., Reg. No. registered January 24, 2003). Complainant provides multiple printouts from the website for the respective trademark authorities. Based on the evidence provided, the Panel concludes Complainant established its rights in the CARGILL mark under Policy ¶ 4(a)(i). See Honeywell Int’l Inc. v. r9.net, FA 445594 (Nat. Arb. Forum May 23, 2005) (finding the complainant’s numerous registrations for its HONEYWELL mark throughout the world sufficient to establish the complainant’s rights in the mark under the Policy ¶ 4(a)(i)).
Complainant also asserts that Respondent’s <cargil.co>, <cargil.biz>, <cargil.org>, and <cargil.info> domain names are confusingly similar to Complainant’s CARGILL mark. The Panel notes the disputed domain names follow a similar aesthetic, merely removing one “l” from the mark, while adding a generic top-level domain (“gTLD”). The Panel determines Respondent failed to sufficiently differentiate the disputed domain names from Complainant’s CARGILL mark, thereby making them confusingly similar to the mark under Policy ¶ 4(a)(i). 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); see also State Farm Mut. Auto. Ins. Co. v. Try Harder & Co., FA 94730 (Nat. Arb. Forum June 15, 2000) (finding that the domain name <statfarm.com> is confusingly similar to the complainant’s STATE FARM mark).
Complainant has proven this element.
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See 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 UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant claims that Respondent is not commonly known by the <cargil.co>, <cargil.biz>, <cargil.org>, and <cargil.info> domain names. The Panel notes that the WHOIS information identifies the registrant of the disputed domain names as “Ronald Kemp.” The Panel also notes that Respondent failed to provide any evidence to support the conclusion that Respondent is commonly known by the disputed domain names. Thus, the Panel finds that Respondent is not commonly known by the <cargil.co>, <cargil.biz>, <cargil.org>, and <cargil.info> domain names under 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).
Complainant also claims that Respondent is not making a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain names. Complainant states that Respondent resolves the <cargil.co>, <cargil.biz>, <cargil.org>, and <cargil.info> domain names to a website soliciting investors for Respondent’s sugar company and offering Respondent’s contact information so that Internet users may purchase sugar from Respondent. Complainant submits a printout from the resolving website to supports its claims, which the Panel notes depicts a website offering bulk sugar for sale from a company called “U & I Sugar Company Limited,” as well as solicitations for investors. Complainant states that Respondent’s use is competing because Complainant also operates in the sugar industry. The Panel finds Respondent is not making a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the disputed domain names under Policy ¶ 4(c)(iii). See Ameritrade Holdings Corp. v. Polanski, FA 102715 (Nat. Arb. Forum Jan. 11, 2002) (finding that the respondent’s use of the disputed domain name to redirect Internet users to a financial services website, which competed with the complainant, was not a bona fide offering of goods or services).
Complainant contends that Respondent engaged in typosquatting by composing the disputed domain names in their current form. The Panel notes the disputed domain names are all comprised of the term “cargil” which is Complainant’s mark with an “l” deleted from the mark. The Panel concludes that Respondent’s registration of the disputed domain name is typosquatting and finds Respondent does not have rights or legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii). See Microsoft Corp. v. Domain Registration Philippines, FA 877979 (Nat. Arb. Forum Feb. 20, 2007) (concluding that by registering the <microssoft.com> domain name, the respondent had “engaged in typosquatting, which provides additional evidence that [the] respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii).”).
Complainant has proven this element.
Complainant argues that Respondent resolves the <cargil.co>, <cargil.biz>, <cargil.org>, and <cargil.info> domain names to a website soliciting investors for Respondent’s sugar company and providing contact information for Respondent so that Internet users may purchase sugar from Respondent. Complainant states that this use indicates bad faith under Policy ¶ 4(b)(iii). The Panel finds Respondent’s registration and use of the disputed domain names disrupt Complainant’s business and the Panel concludes Respondent registered and uses the disputed domain names in bad faith under Policy ¶ 4(b)(iii). See DatingDirect.com Ltd. v. Aston, FA 593977 (Nat. Arb. Forum Dec. 28, 2005) (“Respondent is appropriating Complainant’s mark to divert Complainant’s customers to Respondent’s competing business. The Panel finds this diversion is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”).
Complainant also argues that Respondent is attempting to capitalize on the goodwill associated with Complainant’s reputation in the sugar industry using the CARGILL mark. Complainant states that Respondent resolves the disputed domain names to a website for a bulk sugar company. Complainant provides a printout from the resolving website, which the Panel notes supports Complainant’s argument. Based upon the evidence provided, the Panel finds Respondent registered and uses the disputed domain names in bad faith under Policy ¶ 4(b)(iv). See Luck's Music Library v. Stellar Artist Mgmt., FA 95650 (Nat. Arb. Forum Oct. 30, 2000) (finding that the respondent engaged in bad faith use and registration by using domain names that were identical or confusingly similar to the complainant’s mark to redirect users to a website that offered services similar to those offered by the complainant).
Complainant contends that Respondent engaged in typosquatting by composing the disputed domain names in their current form. The Panel notes the disputed domain names all include Complainant’s CARGILL mark, merely deleting the second letter “l” from the mark. The Panel finds Respondent engaged in typosquatting and concludes Respondent registered and uses the disputed domain names in bad faith under Policy ¶ 4(a)(iii). See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (finding that the respondent engaged in typosquatting, which is evidence of bad faith registration and use under Policy ¶ 4(a)(iii)).
Complainant has proven this element.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <cargil.co>, <cargil.biz>, <cargil.org>, and <cargil.info> domain names be TRANSFERRED from Respondent to Complainant.
/S/ Karl V. Fink
Hon. Karl V. Fink (Ret.), Panelist
Dated: September 10, 2012
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