Almco Inc. v. Almco, Inc. c/o Domain Admin
Claim Number: FA0509000560535
Complainant is Almco Inc. (“Complainant”), represented by Aaron Wangen, of Mediar, Inc. 232 S. Washington Ave., Suite 2, Albert Lea, MN 56007. Respondent is Almco, Inc. c/o Domain Admin (“Respondent”), 507 W. Front Street, Albert Lea, MN 56007-2751.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <almco.com>, registered with Nameview, 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 September 13, 2005; the National Arbitration Forum received a hard copy of the Complaint on September 15, 2005.
On September 21, 2005, Nameview, Inc. confirmed by e-mail to the National Arbitration Forum that the <almco.com> domain name is registered with Nameview, Inc. and that Respondent is the current registrant of the name. Nameview, Inc. has verified that Respondent is bound by the Nameview, 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 September 27, 2005, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of October 17, 2005 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@almco.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On October 24, 2005, 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 <almco.com> domain name is identical to Complainant’s ALMCO mark.
2. Respondent does not have any rights or legitimate interests in the <almco.com> domain name.
3. Respondent registered and used the <almco.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Almco Inc., manufactures and sells industrial finishing, vibratory finishing, deburring, and cleaning equipment. In connection with these products, Complainant owns the ALMCO mark (Reg. No. 745,121 issued Feb. 12, 1963) registered with the United States Patent and Trademark Office (“USPTO”).
Respondent registered the <almco.com> domain name on April 12, 2002. Respondent’s domain name resolves to a website offering competing products and services.
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 ALMCO mark due to its registration of the mark 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 <almco.com> domain name is identical to Complainant’s registered mark. Respondent’s disputed domain name contains Complainant’s ALMCO mark in its entirety and adds the generic top-level domain (“gTLD”) “.com.” Panels have found that the addition of a gTLD, such as “.com,” is irrelevant in determining whether a domain name is identical or confusingly similar to an established mark. The Panel finds that Respondent’s <almco.com> domain name is identical to Complainant’s ALMCO mark pursuant to Policy ¶ 4(a)(i). See Pomellato S.p.A v. Tonetti, D2000-0493 (WIPO July 7, 2000) (finding <pomellato.com> identical to the complainant’s mark because the generic top-level domain (gTLD) “.com” after the name POMELLATO is not relevant); see also Snow Fun, Inc. v. O'Connor, FA 96578 (Nat. Arb. Forum Mar. 8, 2001) (finding that the domain name <termquote.com> is identical to the complainant’s TERMQUOTE mark).
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 <almco.com> domain name. Once Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to prove that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). 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).
Respondent is using the <almco.com> domain name
to operate a website that offers products and services that directly compete
with Complainant’s business. The Panel
finds that such use is neither a bona fide offering of goods and services pursuant to Policy ¶ 4(c)(i) nor a
legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See
Computerized Sec. Sys., Inc. v. Hu,
FA 157321 (Nat. Arb. Forum June 23, 2003) (“Respondent’s appropriation of
[Complainant’s] SAFLOK mark to market products that compete with Complainant’s
goods does not constitute a bona fide offering of goods and services.”); see
also Ultimate Elecs., Inc. v. Nichols, FA 195683 (Nat. Arb. Forum Oct. 27, 2003) (finding that the
respondent's “use of the domain name (and Complainant’s mark) to sell
products in competition with Complainant demonstrates neither a bona fide
offering of goods or services nor a legitimate noncommercial or fair use of the
name”).
Furthermore, despite being listed in the WHOIS information as “Almco, Inc.,” no affirmative evidence has been set forth showing that Respondent is commonly known by the <almco.com> domain name. As a result, Respondent has failed to show evidence of rights or legitimate interests in the disputed domain name pursuant to 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 Ian Schrager Hotels, L.L.C. v. Taylor, FA 173369 (Nat. Arb. Forum Sept. 25, 2003) (finding that without demonstrable evidence to support the assertion that a respondent is commonly known by a domain name, the assertion must be rejected).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent is using the <almco.com> domain name, which is identical to Complainant’s ALMCO mark, to operate a website that provides goods and services in direct competition with Complainant’s business. The Panel finds that such use constitutes disruption of Complainant’s business and is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding that the respondent registered the domain name in question to disrupt the business of the complainant, a competitor of the respondent); see also Gen. Media Commc’ns, Inc. v. Vine Ent., FA 96554 (Nat. Arb. Forum Mar. 26, 2001) (finding bad faith where a competitor of the complainant registered and used a domain name confusingly similar to the complainant’s PENTHOUSE mark to host a pornographic web site).
Furthermore, Respondent’s use of the disputed domain name will likely cause confusion among Internet users as to Complainant’s sponsorship of or affiliation with the resulting website. The Panel finds that such use is further evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Am. Univ. v. Cook, FA 208629 (Nat. Arb. Forum Dec. 22, 2003) (“Registration and use of a domain name that incorporates another's mark with the intent to deceive Internet users in regard to the source or affiliation of the domain name is evidence of bad faith.”); 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 <almco.com> domain name be TRANSFERRED from Respondent to Complainant.
Honorable Karl V. Fink (Ret.), Panelist
Dated: November 4, 2005
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