Pioneer Hi-Bred International Inc. v. Titan Net a/k/a Titan
Claim Number: FA0603000660591
Complainant is Pioneer Hi-Bred International Inc. (“Complainant”), represented by Mark Sommers, of Finnegan Henderson Farabow Garrett & Dunner L.L.P., 901 New York Avenue Nw, Washington, DC 20001. Respondent is Titan Net a/k/a Titan (“Respondent”), Net, Kenyatta Ave., P.O. Box 4276-30100, Eldoret Ke 30100, Kenya.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <pioneerseed.org>, registered with Intercosmos Media Group.
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 March 15, 2006; the National Arbitration Forum received a hard copy of the Complaint on March 16, 2006.
On March 15, 2006, Intercosmos Media Group confirmed by e-mail to the National Arbitration Forum that the <pioneerseed.org> domain name is registered with Intercosmos Media Group and that Respondent is the current registrant of the name. Intercosmos Media Group has verified that Respondent is bound by the Intercosmos Media Group 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 March 17, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of April 6, 2006 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@pioneerseed.org by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On April 14, 2006, 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." 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 <pioneerseed.org> domain name is confusingly similar to Complainant’s PIONEER mark.
2. Respondent does not have any rights or legitimate interests in the <pioneerseed.org> domain name.
3. Respondent registered and used the <pioneerseed.org> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Pioneer Hi-Bred International, Inc., is the largest agricultural seed company in the world, marketing and selling agricultural seed in nearly seventy countries. Complainant is also a leader in the research and development of agricultural seed through plant genetics. Complainant has registered various marks in connection with these goods and services, including the PIONEER mark, which has been registered with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 84,443 issued December 12, 1911).
Respondent registered the <pioneerseed.org> domain name on January 23, 2006. Respondent’s domain name resolves to a website featuring links to various competing and non-competing commercial websites.
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 has established rights in the PIONEER mark through registration with the USPTO. See 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.”); see also Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal trademark registrations establish Complainant's rights in the BLIZZARD mark.”).
Complainant contends that Respondent’s <pioneerseed.org> domain name is confusingly similar to Complainant’s mark. Respondent’s domain name features Complainant’s entire PIONEER mark and adds the generic term “seed,” a term with a direct connection to the business in which Complainant engages. The Panel finds that the addition of a generic term, especially one with a direct connection to Complainant’s business, fails to properly distinguish the domain name from Complainant’s mark pursuant to Policy ¶ 4(a)(i). See Arthur Guinness Son & Co. (Dublin) Ltd. v. Healy/BOSTH, D2001-0026 (WIPO Mar. 23, 2001) (finding confusing similarity where the domain name in dispute contains the identical mark of the complainant combined with a generic word or term); see also Christie’s Inc. v. Tiffany’s Jewelry Auction, Inc., D2001-0075 (WIPO Mar. 6, 2001) (finding that the domain name <christiesauction.com> is confusingly similar to the complainant's mark since it merely adds the word “auction” used in its generic sense).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged that Respondent does not have rights
or legitimate interests in the <pioneerseed.org> domain name. Once Complainant makes a prima facie
case in support of its allegations, the burden shifts to Respondent to show
rights or legitimate interests. Due to
Respondent’s failure to respond to the Complaint, the Panel infers that
Respondent does not have rights or legitimate interests in the disputed domain
name. See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1,
2002) (holding that, where the complainant has asserted that respondent does
not have rights or legitimate interests with respect to the domain name, it is
incumbent on respondent to come forward with concrete evidence rebutting this
assertion because this information is “uniquely within the knowledge and
control of the respondent”); see also
Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov.
28, 2000) (finding that, under certain circumstances, the mere assertion by the
complainant that the respondent does not have rights or legitimate interests is
sufficient to shift the burden of proof to the respondent to demonstrate that
such a right or legitimate interest does exist); 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.”). However, the Panel chooses to analyze
whether the evidence supports rights or legitimate interests.
Complainant contends that Respondent’s domain name resolves
to a website, which features links to various competing and non-competing
commercial websites from which Respondent presumably receives referral
fees. The Panel finds that Respondent’s
use of the infringing domain names that include Complainant’s PIONEER mark for
Respondent’s own commercial gain is neither a bona fide offering of
goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate non-commercial
or fair use pursuant to Policy ¶ 4(c)(iii).
See WeddingChannel.com Inc. v. Vasiliev, FA 156716 (Nat. Arb.
Forum June 12, 2003) (finding that the respondent’s use
of the disputed domain name to redirect Internet users to websites unrelated to
the complainant’s mark, websites where the respondent presumably receives a
referral fee for each misdirected Internet user, was not a bona fide
offering of goods or services as contemplated by the Policy); see also
Golden Bear Int’l, Inc. v. Kangdeock-ho, FA 190644 (Nat. Arb. Forum Oct.
17, 2003) (“Respondent's use of a domain name confusingly similar to Complainant’s
mark to divert Internet users to websites unrelated to Complainant's business
does not represent 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).”).
Furthermore, Complainant contends that Respondent is neither commonly known by the disputed domain name nor authorized to register domain names featuring Complainant’s mark or any variation thereof. The Panel finds that there is no evidence that Respondent is commonly known by the <pioneerseed.org> domain name for purposes of established rights or legitimate interests under Policy ¶ 4(c)(ii). See Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding no rights or legitimate interests where (1) the respondent is not a licensee of the complainant; (2) the complainant’s prior rights in the domain name precede the respondent’s registration; (3) the respondent is not commonly known by the domain name in question); see also Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where the respondent was not commonly known by the mark and never applied for a license or permission from the complainant to use the trademarked name).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Finally, Complainant contends that Respondent’s use of the <pioneerseed.org>
domain name for purposes of operating a website that features links to various
competing and non-competing commercial websites through which Respondent
presumably receives referral fees is evidence of bad faith. The Panel finds that such use of
Complainant’s mark is likely to cause confusion as to Complainant’s sponsorship
of and affiliation with Respondent’s website.
As a result, Respondent’s intent to deceive Internet users for
commercial gain is evidence of bad faith registration and use pursuant to
Policy ¶ 4(b)(iv). See G.D. Searle
& Co. v. Celebrex Drugstore, FA 123933 (Nat. Arb. Forum Nov. 21, 2002)
(finding that the respondent registered and used the domain name in bad faith
pursuant to Policy ¶ 4(b)(iv) where the respondent was using the confusingly
similar domain name to attract Internet users to its commercial website); see
also Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003) (“Respondent's
prior use of the <mailonsunday.com> domain name is evidence of bad faith
pursuant to Policy ¶ 4(b)(iv) because the domain name provided links to
Complainant's competitors and Respondent presumably commercially benefited from
the misleading domain name by receiving ‘click-through-fees.’”).
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 <pioneerseed.org> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: April 24, 2006
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