Casey's Retail Company v. emanuela rocco
Claim Number: FA1705001731823
Complainant is Casey's Retail Company (“Complainant”), represented by Brandon W. Clark of McKee, Voorhees & Sease PLC, Iowa, USA. Respondent is emanuela rocco (“Respondent”), Italy.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <caseysgeneralstores.net> and <caseysgeneralstores.info>, registered with GoDaddy.com, LLC.
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 Panelist in this proceeding.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 15, 2017; the Forum received payment on May 15, 2017.
On May 16, 2017, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <caseysgeneralstores.net> and <caseysgeneralstores.info> domain names are registered with GoDaddy.com, LLC and that Respondent is the current registrant of the names. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, 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 May 18, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 7, 2017 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@caseysgeneralstores.net, and postmaster@caseysgeneralstores.info. Also on May 18, 2017, 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.
Respondent did not submit a formal Response, but she sent two e-mails to the Forum, see below. Having received no formal response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On June 13, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 names be transferred from Respondent to Complainant.
A. Complainant
Complainant states that it is a United States based corporation that was founded in 1959. It is a widely-known chain of commercial convenience stores and operates approximately 1940 individual stores. Complainant registered its CASEY’S GENERAL STORE mark in the United States in 1974. It has prominently and extensively used, promoted, and advertised the mark.
According to Complainant, the disputed domain names are identical or confusingly similar to Complainant’s mark because both merely eliminate the space (and punctuation) and append the letter “S” and a generic top-level domain (“gTLD”) “.net” or “.info” to Complainant’s fully incorporated mark.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name. Complainant has not licensed or otherwise authorized Respondent to use its CASEY’S GENERAL STORE mark in any fashion, and Respondent is not commonly known by the disputed domain name. Further, Respondent is using the disputed domain names to resolve to a web site that purports to provide information on “liquidation sales in hundreds of stores”. Such use of the disputed domain names can cause confusion, and can deceive Internet users as to the affiliation, connection, or association of Respondent with Complainant. Such use is not construed as a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii). Additionally, Respondent lacks rights and legitimate interests because the disputed domain names constitute typosquatting.
Further, says Complainant, Respondent has registered and is using the disputed domain name in bad faith. Respondent attempts to disrupt the business of Complainant—under Policy ¶ 4(b)(iii)—by diverting Complainant’s potential customers to Respondent’s site. Respondent is also attempting to attract Internet traffic and commercially benefit from the goodwill of the CASEY’S GENERAL STORE mark by creating confusion as to the source, sponsorship, affiliation, or endorsement of its website by using the marks of Complainant. Bad faith is further demonstrated by Respondent’s typosquatting and actual knowledge of Complainant’s rights in the mark.
B. Respondent
Respondent failed to submit a formal Response in this proceeding. However, in an e-mail, Respondent states, in pertinent part: “We are willing to transfer or release domains, pls take necessary steps to do so …”.
For the reasons set forth below, the Panel will not make any findings of fact.
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(f), 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 (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.”).
In the present case, the parties have both asked for the domain names to be transferred to Complainant. In accordance with a general legal principle governing arbitrations as well as national court proceedings, this Panel holds that it cannot act nec ultra petita nec infra petita, that is, that it cannot issue a decision that would be either less than requested, nor more than requested by the parties. Since the requests of the parties in this case are identical, the Panel has no scope to do anything other than to recognize the common request, and it has no mandate to make findings of fact or of compliance (or not) with the Policy.
See Malev Hungarian Airlines, Ltd. v. Vertical Axis Inc., FA 212653 (Forum Jan. 13, 2004); see also Boehringer Ingelheim Int’l GmbH v. Modern Ltd. – Cayman Web Dev., FA 133625 (Forum Jan. 9, 2003) (transferring the domain name registration where the respondent stipulated to the transfer); see also Disney Enters., Inc. v. Morales, FA 475191 (Forum June 24, 2005) (“[U]nder such circumstances, where Respondent has agreed to comply with Complainant’s request, the Panel felt it to be expedient and judicial to forego the traditional UDRP analysis and order the transfer of the domain names.”).
For the reasons set forth above, the Panel will not analyze this element of the Policy.
For the reasons set forth above, the Panel will not analyze this element of the Policy.
For the reasons set forth above, the Panel will not analyze this element of the Policy.
Given the common request of the Parties, it is Ordered that the <caseysgeneralstores.net> and <caseysgeneralstores.info> domain names be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: June 13, 2017
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