MTD Products Inc. v. Domain Admin / Domain Privacy Guard Sociedad Anonima Ltd
Claim Number: FA1907001854040
Complainant is MTD Products Inc. (“Complainant”), represented by Christopher A. Corpus, Ohio, USA. Respondent is Domain Admin / Domain Privacy Guard Sociedad Anonima Ltd (“Respondent”), Panama.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <troybuiltmowers.com>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
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.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 26, 2019; the Forum received payment on July 26, 2019.
On July 27, 2019, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <troybuiltmowers.com> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com 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 31, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 20, 2019 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@troybuiltmowers.com. Also on July 31, 2019, 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 August 22, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Kenneth L. Port 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
Complainant has been a market leader in the design, manufacture, and sale of outdoor power equipment worldwide. Complainant has rights in the TROY-BILT mark through its registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 850,181, registered June 4, 1968). See Amend. Compl. Ex. A. Respondent’s <troybuiltmowers.com> domain name is confusingly similar to Complainant’s TROY-BILT mark. Respondent intentionally misspells the word “bilt” in Complainant’s mark by spelling “built” and adds the generic term “mowers.”
Respondent does not have any rights or legitimate interests in the <troybuiltmowers.com> as Respondent is not commonly known by the disputed domain name. Respondent fails to make a bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, the disputed domain name resolves to a landing page containing a series of links. Respondent also attempts to sell the disputed domain name.
Respondent registered and is using the <troybuiltmowers.com> domain name in bad faith by offering the disputed domain name for $5,759.00. Respondent attempts to create a likelihood of confusion and divert internet users. Lastly, Respondent had actual knowledge of Complainant’s rights in the TROY-BILT mark prior to registration of the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding. The disputed domain name was registered on October 27, 2006
The Panel finds that the disputed domain name is confusingly similar to Complainant’s trademark; that Respondent has no rights or legitimate interests in or to the disputed domain name; and that Responds engaged in bad faith use and registration.
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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The Panel finds that the disputed domain name, <troybuiltmowers.com>, is confusingly similar to Complainant’s trademark, TROY-BILT. Complainant has adequately plead its rights and interests in and to this trademark. Respondent arrives at the disputed domain name by misspelling “bilt” and adding the word “mowers.” This is insufficient to distinguish the disputed domain name from Complainant’s trademark.
As such, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s trademark.
The Panel also finds that the Respondent has no rights or legitimate interests in or to the disputed domain name. Respondent has no permission, permission or license to register the disputed domain name. Respondent is not commonly known by the disputed domain name. Respondent fails to make a bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, the disputed domain name resolves to a landing page containing a series of links. Respondent also attempts to sell the disputed domain name.
As such, the Panel finds that Respondent has no rights or legitimate interests in or to the disputed domain name.
Finally, the Panel finds that the Respondent has engaged in bad faith use and registration of the disputed domain name. Complainant argues that Respondent registered and used the disputed main name in bad faith by offering to sell the disputed domain name. Attempts to sell a disputed domain name may be evidence of bad faith registration and use per Policy ¶ 4(b)(i). See Vanguard Trademark Holdings USA LLC v. Wang Liqun, FA1506001625332 (FORUM July 17, 2015) (“A respondent’s general offer to sell a disputed domain name for an excess of out-of-pocket costs is evidence of bad faith under Policy ¶ 4(b)(i).”). Here, Complainant has provided a screenshot that shows Respondent attempting to sell the disputed domain name for $5,759.00. See Amend. Compl. Ex. F. Therefore, the Panel finds that Respondent registered and used the disputed domain name in bad faith per Policy ¶ 4(b)(i).
Complainant argues that Respondent attempts to create a likelihood of confusion and divert internet users. Use of a disputed domain name to create a likelihood of confusion with Internet users may be evidence of bad faith per Policy ¶ 4(b)(iv). See Sandhills Publishing Company v. sudeep banerjee / b3net.com, Inc., FA 1674572 (FORUM June 17, 2016) (finding that the respondent took advantage of the confusing similarity between the <machinerytraderparts.com> domain name and the complainant’s MACHINERY TRADER mark, which indicates bad faith registration and use pursuant to Policy ¶ 4(b)(iv)). Here, it appears that Respondent creates a likelihood of confusion as to Complainant’s association with the disputed domain name. See Compl. Ex. D. Therefore, the Panel finds that Respondent engaged in bad faith per Policy ¶ 4(b)(iv).
Lastly, Complainant argues that Respondent had actual knowledge of Complainant’s rights in the TROY-BILT mark prior to registration of the <troybuiltmowers.com> domain name. Given the fame of Complainant’s trademark and the totality of the circumstances, the Panel finds that Respondent had actual prior knowledge of Complainant’s rights in and to its trademark.
As such, the Panel finds that Respondent has engaged in bad faith use and registration of the disputed domain name.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <troybuiltmowers.com> domain name be TRANSFERRED from Respondent to Complainant.
Kenneth L. Port, Panelist
Dated: September 7, 2019
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