Moo & Oink, Inc. v. MooandOink.com
Claim Number: FA0612000873145
Complainant is Moo & Oink, Inc. (“Complainant”), represented by Paul
D. McGrady, of Greenberg Traurig, LLP,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <mooandoink.com>, registered with Moniker Online Services, 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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On January 9, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 29, 2007 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@mooandoink.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
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 <mooandoink.com> domain name is confusingly similar to Complainant’s HOME OF MOO AND OINK mark.
2. Respondent does not have any rights or legitimate interests in the <mooandoink.com> domain name.
3. Respondent registered and used the <mooandoink.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Moo & Oink, Inc., has registered the HOME OF MOO AND OINK mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 1,154,311 issued May 12, 1981). Complainant uses the mark for its retail store services and distribution services in the field of meat products.
Respondent registered the domain name <mooandoink.com> on January 24, 2004. Respondent is using the domain name to divert Internet users to a website which contains links to websites that sell products that compete with Complainant’s products.
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 HOME OF MOO AND
OINK mark pursuant to Policy ¶ 4(a)(i) through its registration of the mark with the USPTO. See
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.”); see also 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.”).
Respondent’s <mooandoink.com> domain name is confusingly similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i) because the domain name incorporates the dominant portion of Complainant’s mark and merely deletes “home” and “of” from the beginning of the mark. See Wellness Int’l Network, LTD v. Apostolics.com, FA 96189 (Nat. Arb. Forum Jan. 16, 2001) (finding that the domain name <wellness-international.com> is confusingly similar to the complainant’s WELLNESS INTERNATIONAL NETWORK); see also Asprey & Garrard Ltd v. Canlan Computing, D2000-1262 (WIPO Nov. 14, 2000) (finding that the domain name <asprey.com> is confusingly similar to the complainant’s ASPREY & GARRARD and MISS ASPREY marks).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant alleges that Respondent has no rights or
legitimate interests in the <mooandoink.com> domain name.
Complainant has the intitial burden of proof in asserting that
Respondent has no rights or legitimate interests in the domain name. Once Complainant makes a prima facie case under Policy ¶ 4(a)(ii), the burden then shifts to Respondent to show
that it does have rights or legitimate interests. See Do The Hustle, LLC v. Tropic Web,
D2000-0624 (WIPO Aug. 21, 2000) (once the complainant asserts that the
respondent has no rights or legitimate interests with respect to the domain,
the burden shifts to the respondent to provide “concrete evidence that it has
rights to or legitimate interests in the domain name at issue”).
Respondent’s failure to answer the Complaint raises a
presumption that Respondent has no rights or legitimate interests in the
disputed domain names. See Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum Dec. 31, 2002) (“Respondent's
failure to respond not only results in its failure to meet its burden, but also
will be viewed as evidence itself that Respondent lacks rights and legitimate
interests in the disputed domain name.”).
Nevertheless, the Panel will examine the record to determine if
Respondent has rights or legitimate interests under Policy ¶ 4(c).
Respondent is using the <mooandoink.com> domain name, which is confusingly similar to
Complainant’s HOME OF MOO AND OINK mark, to divert Internet users to a website which advertises
links to websites that sell products that compete with Complainant. Such use of the disputed domain name does not
constitute a bona fide offering of
goods and services pursuant to Policy ¶ 4(c)(i), or a legitmate noncommercial or fair use of
the domain name pursuant to Policy ¶ 4(c)(iii). See
DLJ Long
Term Inv. Corp. v. BargainDomainNames.com,
FA 104580 (Nat. Arb. Forum Apr. 9, 2002) (“Respondent is not using the disputed
domain name in connection with a bona
fide offering of goods and services because Respondent is using the domain
name to divert Internet users to <visual.com>, where services that
compete with Complainant are advertised.”); see
also Coryn Group, Inc. v. Media Insight, FA 198959 (Nat. Arb. Forum
Dec. 5, 2003) (finding that the respondent was not using the domain names for a
bona fide offering of goods or services nor a legitimate noncommercial
or fair use because the respondent used the names to divert Internet users to a
website that offered services that competed with those offered by the
complainant under its marks).
Complainant asserts that
Respondent is not authorized to use Complainant’s HOME OF MOO AND OINK mark and that Respondent is not associated with
Complainant in any way. Furthermore,
Respondent’s WHOIS information does not suggest that Respondent is commonly
known by the <mooandoink.com>
domain name. Therefore, the Panel finds
that Respondent is not commonly known by the disputed domain name under Policy
¶ 4(c)(ii). See Gallup, Inc. v. Amish
Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that the
respondent does not have rights in a domain name when the respondent is not
known by the mark); see also Wells Fargo & Co. v. Onlyne Corp. Services11, Inc., FA 198969 (Nat. Arb. Forum Nov. 17, 2003) (“Given the
WHOIS contact information for the disputed domain [name], one can infer that
Respondent, Onlyne Corporate Services11, is not commonly known by the name
‘welsfargo’ in any derivation.”).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent is using a domain name confusingly similar to
Complainant’s HOME OF MOO AND OINK mark to operate a commercial website
featuring links to other companies providing competing products. The Panel finds such use indicates bad faith
according to Policy ¶ 4(b)(iii) because it appears that Respondent has
registered and is using the <mooandoink.com>
domain name for the primary purpose of disrupting Complainant’s business. See EBAY, Inc. v. MEOdesigns, D2000-1368 (WIPO Dec. 15, 2000) (finding
that the respondent registered and used the domain name <eebay.com> in
bad faith where the respondent has used the domain name to promote competing
auction sites); see also Puckett, Individually v. Miller,
D2000-0297 (WIPO June 12, 2000) (finding that the respondent has diverted
business from the complainant to a competitor’s website in violation of Policy
¶ 4(b)(iii)).
Respondent is using the <mooandoink.com>
domain name, which is confusingly similar to Complainant’s mark, to divert
Internet users seeking Complainant’s products to a website containing links to competing
products. The Panel infers that
Respondent earns click-through fees for each consumer it diverts to these
third-party websites. In that case, Respondent is taking commercial advantage of
the likelihood of confusion between Respondent’s domain name and Complainant’s
mark, and profiting from the goodwill associated with the mark. Use of the disputed domain name for this
purpose constitutes bad faith registration and use under Policy ¶
4(b)(iv). See
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 <mooandoink.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: February 16, 2007
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