The Toro Company v. Tommy Kishkin
Claim Number: FA1311001531690
Complainant is The Toro Company (“Complainant”), represented by Linda M. Byrne of Crawford Maunu PLLC, Minnesota, USA. Respondent is Tommy Kishkin (“Respondent”), Texas, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <t0r0.com>, registered with GoDaddy.com, LLC.
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.
John J. Upchurch as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on November 25, 2013; the National Arbitration Forum received payment on November 25, 2013.
On November 27, 2013, GoDaddy.com, LLC confirmed by e-mail to the National Arbitration Forum that the <t0r0.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC 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 November 27, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 17, 2013 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@t0r0.com. Also on November 27, 2013, 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 December 23, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed John J. Upchurch 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.
Complainant
a) Complainant is one of the world’s leading manufacturers of lawn mowers, turf care equipment, lawn tractors, utility vehicles, snow throwers and other types of outdoor power equipment. Complainant has been in business since 1914. Complainant operates a website at <toro.com>.
b) Complainant has rights in the TORO mark, used in connection with the manufacture and distribution of outdoor power equipment. Complainant owns registrations for the TORO mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 755,846 registered Sept. 3, 1963).
c) Respondent’s <t0r0.com> domain name is confusingly similar to Complainant’s mark. The dispute domain name fully incorporates Complainant’s TORO mark, but Respondent modified Complainant’s mark by twice substituting the number “0” for the letter “o” in the mark.
d) Respondent does not have any rights or legitimate interest in the <t0r0.com> domain name.
a. Respondent is not commonly known by the disputed domain name, and Complainant has not authorized Respondent to use its TORO mark in any way.
b. The resolving website appears to be currently inactive.
c. Respondent’s conduct constitutes typosquatting.
e) Respondent registered and is using the <t0r0.com> domain name in bad faith.
a. The resolving website is inactive.
b. If Respondent activated the disputed domain name, Respondent could use it to divert Internet users to the disputed domain name and obtain click-through revenue from links placed on the resolving website.
c. Respondent’s conduct constitutes typosquatting.
Respondent
a) Respondent did not submit a formal response in this proceeding, but the Panel notes that Respondent made several statements regarding the <t0r0.com> domain name via e-mail.
a. Respondent claims the disputed domain name was for personal use only and not business purposes. Respondent used the disputed domain name as a way for his parents to watch Respondent’s baby on Respondent’s “IP Camera monitor.”
b. Respondent is willing to transfer the domain name but acknowledged Respondent was unable to do so because the disputed domain name has been locked pursuant to this proceeding.
PRELIMINARY ISSUE: Consent to Transfer via Other Correspondence
The National Arbitration Forum was copied on documentation submitted from Respondent to Complainant, which is identified in this proceeding under the “Respondent” section above. In several e-mails, Respondent purports to consent to the transfer of the <t0r0.com> domain name. The Panel notes that it is under no obligation to acknowledge any such documents. However, after the initiation of this proceeding, GoDaddy.com, LLC placed a hold on Respondent’s account and therefore Respondent cannot transfer the disputed domain name while this proceeding is still pending. As a result, the Panel finds that in a circumstance such as this, where Respondent has not contested the transfer of the disputed domain name but instead agrees to transfer the domain name in question to Complainant, the Panel may decide to forego the traditional UDRP analysis and order an immediate transfer of the <t0r0.com> domain name. See Boehringer Ingelheim Int’l GmbH v. Modern Ltd. – Cayman Web Dev., FA 133625 (Nat. Arb. Forum Jan. 9, 2003) (transferring the domain name registration where the respondent stipulated to the transfer); see also Malev Hungarian Airlines, Ltd. v. Vertical Axis Inc., FA 212653 (Nat Arb. Forum Jan. 13, 2004) (“In this case, the parties have both asked for the domain name to be transferred to the Complainant . . . Since the requests of the parties in this case are identical, the Panel has no scope to do anything other than to recognize the common request, and it has no mandate to make findings of fact or of compliance (or not) with the Policy.”); see also Disney Enters., Inc. v. Morales, FA 475191 (Nat. Arb. Forum June 24, 2005) (“[U]nder such circumstances, where Respondent has agreed to comply with Complainant’s request, the Panel felt it to be expedient and judicial to forego the traditional UDRP analysis and order the transfer of the domain names.”).
As the Respondent has consented to the relief sought by the Complainant, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <t0r0.com> domain name be TRANSFERRED from Respondent to Complainant.
John J. Upchurch, Panelist
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