Merrick Pet Care, Inc. v. c/o merrickfood.com
Claim Number: FA0903001254168
Complainant is Merrick
Pet Care, Inc. (“Complainant”), represented by Bruce Moseley, of Law Office of Chris Stewart, P.C.,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <merrickfood.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.
Honorable Karl V. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on March 25, 2009; the National Arbitration Forum received a hard copy of the Complaint on March 30, 2009.
On March 25, 2009, Godaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <merrickfood.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-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On April 8, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of April 28, 2009 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@merrickfood.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On April 30, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable 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." 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
<merrickfood.com> domain name is confusingly similar to
Complainant’s
2. Respondent does not have any rights or legitimate interests in the <merrickfood.com> domain name.
3. Respondent registered and used the <merrickfood.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Merrick Pet Care, Inc.,
utilizes its
Respondent registered the <merrickfood.com> domain name on July 20, 2005. The disputed domain name resolves to a parked web page wherein competitive click-through advertisements are displayed.
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.
The Panel finds that Complainant has successfully demonstrated
its rights in the
The <merrickfood.com>
domain name contains Complainant’s
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged that Respondent lacks rights and legitimate interests in the disputed domain name. Based upon the allegations made in the Complaint, the Panel finds that Complainant has established a prima facie case pursuant to Policy ¶ 4(a)(ii), thus shifting the burden of proof to Respondent. Since Respondent has not responded to the Complaint, the Panel may presume that Respondent lacks rights and legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). However, the Panel in its discretion chooses to examine the record to determine whether Respondent has any rights or legitimate interests pursuant to the factors outlined in Policy ¶ 4(c). See AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must 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 interest in the subject domain names.”); see also 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 Policy ¶ 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 Broadcom Corp. v. Ibecom PLC, FA 361190 (Nat. Arb. Forum Dec. 22, 2004) (“Respondent’s failure to respond to the Complaint functions as an implicit admission that [Respondent] lacks rights and legitimate interests in the disputed domain name. It also allows the Panel to accept all reasonable allegations set forth…as true.”).
Respondent’s failure to file a response in the instant
dispute leaves the Panel without any evidence to corroborate the WHOIS
information’s registrant listing of Respondent as “c/o merrickfood.com.” The mere inclusion of the disputed domain
name in the WHOIS information has been held as an absolute failure in terms of
constituting evidence that Respondent is commonly known by the disputed domain
name. In
Respondent’s disputed domain name resolves to a parked web
page. This type of situation commonly
occurs, wherein competitive advertisements and links for the third-party market
challengers of Complainant are displayed.
Predictably, the same occurrence is present here. The provision of the advertisements is
commonly accomplished for the purposes of receiving click-through fees. The Panel finds no reason why it should not
infer the same in this case. The Panel
notes that such click-through endeavors have frequently been held to fail as bona fide offerings of goods or services
under Policy ¶ 4(c)(i) or legitimate noncommercial or
fair uses under Policy ¶ 4(c)(iii). See, e.g., Disney Enters., Inc. v. Kamble, FA 918556 (Nat. Arb. Forum Mar. 27,
2007) (holding that the operation of a pay-per-click website at a confusingly
similar domain name was 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)).
While this web page appears to be parked, the Panel has no arguments
before it suggesting that Respondent can show demonstrable preparations to use
the disputed domain name in a way that would engender rights or legitimate
interests under either Policy ¶¶ 4(c)(i) or
(iii). As such, the Panel chooses to
find that Respondent does lack rights and legitimate interests under both
Policy ¶¶ 4(c)(i) and (iii). See
Vance Int’l, Inc. v. Abend, FA 970871 (Nat. Arb. Forum June 8, 2007) (concluding that the
operation of a pay-per-click website at a confusingly similar domain name does
not represent a bona fide offering of
goods or services or a legitimate noncommercial or fair use, regardless of
whether or not the links resolve to competing or unrelated websites or if the
respondent is itself commercially profiting from the click-through fees).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
There can be little debate that the diversion of Internet
users to the disputed domain name through the use of Complainant’s mark can and
will cause disruption to Complainant’s business. The unceremonious presentation of
advertisements for Complainant’s competitors on this quasi-billboard will
likely lead some of these Internet users away from conducting business with
Complainant. The Panel finds that
Respondent has therefore registered and continues to use the disputed domain
name in bad faith under Policy ¶ 4(b)(iii). See
Moreover, this use of the disputed domain name by Respondent
has already been found to exist for commercial gain, as noted by this Panel in
its Policy ¶ 4(a)(ii) analysis above. Thus, the use of Complainant’s mark in the
disputed domain name was intentionally accomplished in order to trade off the
goodwill surrounding the mark. The result
is a likelihood of confusion in the eyes of the Internet user as to the source,
sponsorship, and endorsement of, or affiliation with, the disputed domain
name. Internet users will likely be
mystified at their diversion from what may appear to be a destination at
Complainant’s website to Respondent’s marketing venture. The Panel finds that Respondent has therefore
registered and continues to use the disputed domain name in bad faith under
Policy ¶ 4(b)(iv).
See AOL LLC v. AIM Profiles,
FA 964479 (Nat. Arb. Forum May 20, 2007) (finding that the respondent
registered and used the disputed domain name in bad faith pursuant to Policy ¶
4(b)(iv) because the respondent was commercially
gaining from the likelihood of confusion between the complainant’s AIM mark and
the competing instant messaging products and services advertised on the
respondent’s website which resolved from the disputed domain name); see also 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).
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 <merrickfood.com> domain name be TRANSFERRED from Respondent to Complainant.
Honorable Karl V. Fink (Ret.), Panelist
Dated: May 14, 2009
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