Dairyland Midwest, Inc. d/b/a AgVision v. Domain Administrator / NameFind LLC
Claim Number: FA1506001623329
Complainant is Dairyland Midwest, Inc. d/b/a AgVision (“Complainant”), represented by Wendy K. Marsh of Nyemaster Goode, P.C., Iowa, USA. Respondent is Domain Administrator / NameFind LLC (“Respondent”), Massachusetts, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <agvision.com>, registered with Network Solutions, LLC.
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 Forum electronically on June 8, 2015; the Forum received payment on June 8, 2015.
On June 9, 2015, Network Solutions, LLC confirmed by e-mail to the Forum that the <agvision.com> domain name is registered with Network Solutions, LLC and that Respondent is the current registrant of the name. Network Solutions, LLC has verified that Respondent is bound by the Network Solutions, LLC 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 June 11, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 1, 2015 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@agvision.com. Also on June 11, 2015, 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 July 9, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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
Policy ¶ 4(a)(i)
Complainant has rights in the AGVISION mark through its registration with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,374,141, registered on August 8, 2000). Respondent’s <agvision.com> domain name is identical to Complainant’s AGVISION mark because it is differentiated by only the addition of the generic top-level domain (“gTLD”) “.com.”
Policy ¶ 4(a)(ii)
Respondent is not commonly known by the disputed domain name as the WHOIS information lists “Domain Administrator” as Registrant. Respondent is not authorized to use Complainant’s AGVISION mark. Respondent fails to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use because Respondent uses the resolving website to host links to competitors of Complainant. Respondent lacks rights and legitimate interests in the domain name because Respondent offers the domain name for sale.
Policy ¶ 4(a)(iii)
Respondent registered the <agvision.com> domain name for the purpose of selling it in excess out of pocket expenses. Respondent uses the resolving website to capitalize on the confusion of Internet users in order to profit commercially by hosting links to competitors of Complainant.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, Dairyland Midwest, Inc. d/b/a AgVision, has rights in the AGVISION mark through its registration with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,374,141, registered on August 8, 2000).
The <agvision.com> domain name was registered on January 9, 2004, by a third party and transferred to Respondent, Domain Administrator / NameFind LLC, on May 28, 2014.
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(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.”).
Complainant has rights in the AGVISION mark under Policy ¶ 4(a)(i)) through registration with the USPTO. See Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (finding that a USPTO trademark registration adequately demonstrates a complainant’s rights in a mark under Policy ¶ 4(a)(i)).
Respondent’s <agvision.com> domain name is identical to Complainant’s AGVISION mark under Policy ¶ 4(a)(i) because it is differentiated by only the addition of the gTLD “.com.”
Respondent is not commonly known by the <agvision.com> domain name under Policy ¶ 4(c)(ii). The WHOIS information lists “Domain Administrator” as Registrant. Respondent is not authorized to use Complainant’s mark. See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark). As such, the Panel finds that Respondent is not commonly known by the <agvision.com> domain name under Policy ¶ 4(c)(ii).
Respondent fails to use the resolving website to provide 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) because Respondent uses the resolving website to host competing links. See United Servs. Auto. Ass’n v. Savchenko, FA 1105728 (Nat. Arb. Forum Dec. 12, 2007) (“The disputed domain name, <usaa-insurance.net>, currently resolves to a website displaying Complainant’s marks and contains links to Complainant’s competitors. The Panel finds this to be neither a bona fide offering of goods or services pursuant to Policy ¶4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶4(c)(iii).”).
Respondent uses the resolving website to take advantage of the confusion of Internet users for financial gain by using the <agvision.com> domain name to host links to competitors of Complainant. Therefore, Respondent registered and uses the domain name in bad faith under Policy ¶ 4(b)(iv). See AltaVista Co. v. Krotov, D2000-1091 (WIPO Oct. 25, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where the respondent’s domain name resolved to a website that offered links to third-party websites that offered services similar to the complainant’s services and merely took advantage of Internet user mistakes).
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <agvision.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: July 23, 2015
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