Clark Equipment Company v. Hytechma GmbH

URS DEFAULT DETERMINATION

Clark Equipment Company v. Hytechma GmbH
Claim Number: FA1503001610881

DOMAIN NAME

<bobcat.koeln>

PARTIES

	Complainant: Clark Equipment Company of West Fargo, ND, United States of America
	Complainant Representative: Michael Best & Friedrich LLP Laura M Konkel of Madison, WI, United States of America

	Respondent: Hytechma GmbH Marco Graf of Hurth, II, DE

REGISTRIES and REGISTRARS

	Registries: NetCologne Gesellschaft für Telekommunikation mbH
	Registrars: 1&1 Internet AG

EXAMINER

	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 Examiner in this proceeding.
	Richard W. Hill, as Examiner

PROCEDURAL HISTORY

	Complainant Submitted: March 23, 2015
	Commencement: March 24, 2015
	Default Date: April 8, 2015
	Having reviewed the communications records, the Examiner finds that the Forum has discharged its responsibility under URS Procedure Paragraphs 3 and 4 and Rule 4 of the Rules for the Uniform Rapid Suspension System (the "Rules").

RELIEF SOUGHT

Complainant requests that the domain name be suspended for the life of the registration.

STANDARD OF REVIEW

Clear and convincing evidence.

FINDINGS and DISCUSSION

Findings of Fact: [OptionalComment]

Even though the Respondent has defaulted, URS Procedure 1.2.6, requires Complainant to make a prima facie case, proven by clear and convincing evidence, for each of the following three elements to obtain an order that a domain name should be suspended.

[URS 1.2.6.1] The registered domain name(s) is/are identical or confusingly similar to a word mark:
  (i) for which the Complainant holds a valid national or regional registration and that is in current use; or
  (ii) that has been validated through court proceedings; or
  (iii) that is specifically protected by a statute or treaty in effect at the time the URS complaint is filed.

Determined: Finding for Complainant

The registered domain name is identical to the Complainant's mark BOBCAT.

[URS 1.2.6.2] Registrant has no legitimate right or interest to the domain name.

Determined: Finding for Complainant

The Respondent is a licensed distributor of the Complainant's products. But, in accordance with the WIPO Overview of WIPO Panel Views, a reseller or distributor can be making a bona fide offering of goods and services and thus have a legitimate interest in the domain name if its use meets certain requirements. Those requirements include "the use of the site to sell only the trademarked goods". In the present case, the Respondent is using the web site at the disputed domain name to sell products that compete directly with the Complainant's products.

[URS 1.2.6.3] The domain name(s) was/were registered and is being used in bad faith.
  a. Registrant has registered or acquired the domain name primarily for the purpose of selling, renting or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of documented out-of pocket costs directly related to the domain name; or
  b. Registrant has registered the domain name in order to prevent the trademark holder or service mark from reflecting the mark in a corresponding domain name, provided that Registrant has engaged in a pattern of such conduct; or
  c. Registrant registered the domain name primarily for the purpose of disrupting the business of a competitor; or
  d. By using the domain name Registrant has intentionally attempted to attract for commercial gain, Internet users to Registrant’s web site or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Registrant’s web site or location or of a product or service on that web site or location.

Determined: Finding for Complainant

The Respondent is well aware of the Complainant's mark, since he is a distributor of the Complainant's products. By using the Complainant's mark in the disputed domain name, the Respondent has intentionally attempted to attract, for comer gain, Internet users to his web by, by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of the Respondent's web site.

FINDING OF ABUSE or MATERIAL FALSEHOOD

The Examiner may find that the Complaint was brought in an abuse of this proceeding or that it contained material falsehoods.

The Examiner finds as follows:

The Complaint was neither abusive nor contained material falsehoods.

DETERMINATION

After reviewing the parties’ submissions, the Examiner determines that the Complainant has demonstrated all three elements of the URS by a standard of clear and convincing evidence; the Examiner hereby Orders the following domain name(s) be SUSPENDED for the duration of the registration:

bobcat.koeln

Richard W. Hill
Examiner
Dated: April 8, 2015

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