MTD Products Inc v WAYNE WICKER / WAYNE WICKER INC TRACTOR AND EQUIPMENT SALES
Claim Number: FA1707001740654
Complainant is MTD Products Inc (“Complainant”), represented by Christopher A. Corpus, Ohio, USA. Respondent is WAYNE WICKER / WAYNE WICKER INC TRACTOR AND EQUIPMENT SALES (“Respondent”), Florida, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <cubcadet-parts.com>, registered with Register.com, Inc..
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.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 19, 2017; the Forum received payment on July 19, 2017.
On July 19, 2017, Register.com, Inc. confirmed by e-mail to the Forum that the <cubcadet-parts.com> domain name is registered with Register.com, Inc. and that Respondent is the current registrant of the name. Register.com, Inc. has verified that Respondent is bound by the Register.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 July 19, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 8, 2017 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@cubcadet-parts.com. Also on July 19, 2017, 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 Forum transmitted to the parties a Notification of Respondent Default.
On August 11, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Kenneth L. Port 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 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 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
Complainant, MTD Products Inc., is a market leader in the outdoor power equipment business based in Valley City, Ohio. In connection with this business, Complainant uses the CUB CADET mark to promote its goods and services. Complainant has rights in the CUB CADET mark based upon registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,252,738, registered Oct. 4, 1983). See Compl., at Attached Ex. A (Complainant’s CUB CADET trademark registrations). Respondent’s <cubcadet-parts.com> is confusingly similar to Complainant’s mark as the domain name contains the mark in its entirety—with spacing removed—and adds a hyphen, the descriptive term “parts,” and the generic top level domain (“gTLD”) “.com.”
Respondent has no rights or legitimate interests in the <cubcadet-parts.com> domain name. Respondent has not been commonly known by <cubcadet-parts.com> and Complainant did not authorize Respondent’s continued use of the CUB CADET marks. Further, Complainant asserts Respondent has failed to use the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use. Instead, the disputed domain name offers outdoor power equipment for sale in competition with Complainant’s business. See Compl., at Attached Ex. F (Screenshot of the resolving website for the disputed domain name).
Respondent registered and uses <cubcadet-parts.com> in bad faith. Respondent registered the disputed domain name to disrupt Complainant’s business through the sale of competitor’s goods. Respondent diverts Internet users, otherwise seeking Complainant or Complainant’s business, to Respondent’s own business for commercial gain.
B. Respondent
Respondent failed to submit a Response in this proceeding. The disputed domain name, <cubcadet-parts.com>, was registered February 2, 2013.
The Panel finds that the disputed domain name is confusingly similar to the Complainant’s valid and subsisting trademark; that the Respondent has no rights or legitimate interests in or to the disputed domain name; and that the Respondent has engaged in bad faith use and registration of the disputed domain name.
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(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 (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.”).
The Panel finds that the disputed domain name, <cubcadet-parts.com>, is confusingly similar to Complaint’s valid and subsisting trademark, CUB CADET. Complainant has adequately plead its rights and interests in and to this trademark. Respondent arrives at the disputed domain name by merely adding a hyphen and the word “parts” followed by the g TLD “.com.” This is inadequate to distinguish the disputed domain name from Complainant’s trademark.
As such, the Panel finds that the disputed domain name is confusingly similar to Complainant’s trademark.
The Panel further finds that Respondent has no rights or legitimate interests in or to the disputed domain name. Respondent has no permission or authority to register the disputed domain name. Respondent is not commonly known by the disputed domain name.
Respondent failed to use the disputed domain name in connection with a bona fide offer of goods or services or for a legitimate noncommercial or otherwise fair use. Instead, the disputed domain name apparently directs Internet users to a webpage displaying Complainant’s CUB CADET mark and offering goods in competition with Complainant’s business. Use of a domain name and a complainant’s mark to provide goods in direct competition with a complainant’s business supports a finding that a respondent lacks rights and legitimate interests in said domain name per Policy ¶¶ 4(c)(i) & (iii).
As such, the Panel finds that Respondent has no rights or legitimate interests in or to the disputed domain name.
The Panel also finds that Respondent has engaged in bad faith use and registration of the disputed domain name. The disputed domain name contains Complainant’s mark in both the domain name and the resolving website to offer products in competition with Complainant’s business. See Compl., at Attached Ex. F. This alone is sufficient to find Respondent has engaged in bad faith use and registration of the disputed domain name.
Complainant also argues that Respondent diverts Internet users, otherwise seeking Complainant or Complainant’s business, to Respondent’s own business for commercial gain. Appropriation of a complainant’s’ mark to offer goods for sale in competition with Complainant supports a finding of bad faith per Policy ¶ 4(b)(iv). Respondent appropriates Complainant’s mark to sell competing products for presumed commercial gain. See Compl., at Attached Ex. F.
As such, the Panel finds Respondent engaged in bad faith use and registration of the disputed domain name under Policy ¶ 4(b)(iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be granted.
Accordingly, it is Ordered that the <cubcadet-parts.com> domain name transferred from Respondent to Complainant.
Kenneth L. Port, Panelist
Dated: August 15, 2017
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