Cargill, Incorporated v. Larry West
Claim Number: FA1706001738033
Complainant is Cargill, Incorporated (“Complainant”), represented by Patrick J. Gallagher of Cozen O’Connor, Minnesota, U.S.A. Respondent is Larry West (“Respondent”), Panama.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <cargillfrozenltd.com>, registered with NameCheap, Inc.
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.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 29, 2017; the Forum received payment on June 29, 2017.
On Jun 30, 2017, NameCheap, Inc. confirmed by e-mail to the Forum that the <cargillfrozenltd.com> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. 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 July 5, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 25, 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@cargillfrozenltd.com. Also on July 5, 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.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On July 27, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sandra J. Franklin 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
1. Respondent’s <cargillfrozenltd.com> domain name is confusingly similar to Complainant’s CARGILL mark.
2. Respondent does not have any rights or legitimate interests in the <cargillfrozenltd.com> domain name.
3. Respondent registered and uses the <cargillfrozenltd.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant offers goods and services in the food, agricultural, and financial sectors, under the CARGILL mark, which it registered with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 880,665, registered Nov. 11, 1969).
Respondent registered the <cargillfrozenltd.com> domain name on March 1, 2017, and uses it to divert Internet users to Respondent’s website, which offers food products identical to Complainant’s food 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."
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.”).
The Panel finds that Complainant has established its rights in the CARGILL mark under Policy ¶ 4(a)(i) through its registration of the mark with the USPTO. See T-Mobile USA, Inc. dba MetroPCS v. Ryan G Foo / PPA Media Services, FA 1627542 (Forum Aug. 9, 2015) (finding that Complainant has rights in the METROPCS mark through its registration with the United States Patent and Trademark Office).
Respondent’s <cargillfrozenltd.com> domain name incorporates the CARGILL mark and adds the descriptive term “frozen” (which refers to Complainant’s food products), the generic term “LTD” (presumably referring to the business term “limited”), and the “.com” gTLD. These changes do not distinguish the disputed domain name from Complainant’s CARGILL mark. The addition of descriptive words, especially those related to a complainant’s business, do not create a domain name distinct from the mark. See Abbott Laboratories v. Miles White, FA 1646590 (Forum Dec. 10, 2015) (holding that the addition of descriptive terms, particularly terms that pertain to complainant’s business, do not adequately distinguish a disputed domain name from complainant’s mark under Policy ¶ 4(a)(i).). The addition of the “.com” gTLD is irrelevant to a Policy ¶ 4(a)(i) analysis. See Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar). Therefore, the Panel finds that Respondent’s <cargillfrozenltd.com> domain name is confusingly simialr to Complainant’s CARGILL mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant argues that Respondent has no rights or legitimate interests in the <cargillfrozenltd.com> domain name and that Respondent is not commonly known by the disputed domain name. The WHOIS information for the <cargillfrozenltd.com> domain name identifies “larry west” as the registrant, which provides no evidence that Respondent is commonly known by the domain name. See Guardair Corporation v. Pablo Palermo, FA1407001571060 (Forum Aug. 28, 2014) (holding that the respondent was not commonly known by the <guardair.com> domain name according to Policy ¶ 4(c)(ii), as the WHOIS information lists “Pablo Palermo” as registrant of the disputed domain name). Accordingly, the Panel finds that Respondent is not commonly known by, and thus lacks rights and legitimate interest in, the <cargillfrozenltd.com> domain name pursuant to Policy ¶ 4(c)(ii).
Complainant also argues that Respondent is using the <cargillfrozenltd.com> domain name to divert Internet users to Respondent’s website, which offers products similar to Complainant’s products, and therefore that Respondent cannot claim it makes a bona fide offering of goods or services or a legitimate noncommercial or fair use. Respondent’s resolving website offers frozen food products, and such an offer is in competition with Complainant’s business in the food industry. Using a domain name to offer products or services in direct competition with a complainant is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. See General Motors LLC v. MIKE LEE, FA 1659965 (Forum Mar. 10, 2016) (finding that “use of a domain to sell products and/or services that compete directly with a complainant’s business does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”). Therefore, the Panel finds that Respondent is not using the disputed domain name to make a bona fide offering of goods or services or a legitimate noncommercial or fair use.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant shows that Respondent is using the disputed domain name to attract consumers looking for Complainant’s products, to Respondent’s website, which offers competing products. Using a disputed domain name to offer competing products demonstrates bad faith. See Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA1504001612750 (Forum May 13, 2015) (“The Panel agrees that Respondent’s use of the website to display products similar to Complainant’s, imputes intent to attract Internet users for commercial gain, and finds bad faith per Policy ¶ 4(b)(iv).”). The Panel thus finds that Respondent registered and is using the disputed domain name in bad faith under Policy ¶ 4(b)(iv).
Complainant alleges that Respondent must have had actual knowledge of Complainant’s rights, given the notoriety of the CARGILL mark, and Respondent’s use of the domain name to offer products related to Complainant’s business. The Panel agrees and finds that Respondent had actual knowledge of Complainant’s rights in the CARGILL mark and thus registered, and is using, the <cargillfrozenltd.com> domain name in bad faith. See Google Inc. v. Ahmed Humood, FA1411001591796 (Forum Jan. 7, 2015) (“This Panel makes that inference; Respondent has actual knowledge of Complainant’s mark at the time of domain name registration based on the fame of Complainant’s GOOGLE mark and Respondent’s use of one of the disputed domain names to detail Internet domain name registration and maintenance services related to and in competition with Complainant.”).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <cargillfrozenltd.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: July 28, 2017
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