DECISION

 

J.R. Simplot Company v. patti tenford

Claim Number: FA2312002074491

 

PARTIES

Complainant is J.R. Simplot Company ("Complainant"), represented by Jeanette Eriksson of FairWinds Partners LLC, District of Columbia, USA. Respondent is patti tenford ("Respondent"), Washington, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <jrsimplot.org>, registered with GoDaddy.com, LLC.

 

PANEL

The undersigned certifies that they have acted independently and impartially and to the best of their knowledge have no known conflict in serving as Panelist in this proceeding.

 

Sandra J. Franklin as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on December 8, 2023; Forum received payment on December 8, 2023.

 

On December 11, 2023, GoDaddy.com, LLC confirmed by e-mail to Forum that the <jrsimplot.org> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. 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 December 13, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 2, 2024 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@jrsimplot.org. Also on December 13, 2023, 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, Forum transmitted to the parties a Notification of Respondent Default.

 

On January 3, 2024, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Sandra J. Franklin as Panelist.

 

Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

1.       Respondent's <jrsimplot.org> domain name is confusingly similar to Complainant's SIMPLOT mark.

 

2.       Respondent does not have any rights or legitimate interests in the <jrsimplot.org> domain name.

 

3.       Respondent registered and uses the <jrsimplot.org> domain name in bad faith.

 

B. Respondent did not file a Response.

 

FINDINGS

Complainant is in the food industry and holds a registration for the SIMPLOT mark with the United States Patent and Trademark Office ("USPTO") (Reg. No. 798,704, registered November 16, 1965). Complainant conducts business at <jrsimplot.com>.

 

Respondent registered the <jrsimplot.org> domain name on July 25, 2015, and uses it to resolve to pay-per-click links.

 

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted and 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").

 

Identical and/or Confusingly Similar

The Panel finds that Complainant has rights in the SIMPLOT mark based on registration with the USPTO. See Brooks Sports, Inc. v. Joyce Cheadle, FA 1819065 (Forum Dec. 28, 2018) (finding that Complainant's registration of the BROOKS mark with the USPTO sufficiently conferred its rights in the mark under Policy ¶ 4(a)(i).").

 

Respondent's <jrsimplot.org> domain name uses Complainant's SIMPLOT mark and adds "jr", a reference Complainant's trade name "J.R. Simplot Company"), and a gTLD. These changes do not distinguish a disputed domain name from a mark under Policy ¶ 4(a)(i). See Caterpillar Inc. v. Patricia Wee, FA 2001265 (Forum July 20, 2022) (finding the addition of the term "mr, "the numbers "181" and ".com" gTLD to complainant's CAT mark in the <mrcat181.com> domain name did not prevent a finding of confusing similarity.)  Therefore, the Panel finds that Respondent's <jrsimplot.org> domain name is confusingly similar to Complainant's SIMPLOT mark.

 

The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

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 Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) ("Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests.").

 

Complainant contends that Respondent lacks rights and legitimate interests in the <jrsimplot.org> domain name as Respondent is not commonly known by the disputed domain name and Complainant has not authorized or licensed to Respondent any rights in the SIMPLOT mark. The WHOIS information for the disputed domain name lists the registrant as "patti tenford". Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name, and thus has no rights under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent's use of the same); see also Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) ("lack of evidence in the record to indicate a respondent is authorized to use [the] complainant's mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)").

 

Complainant contends that Respondent fails to use the <jrsimplot.org> domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use as the domain name resolves to a parked page with links. Using a disputed domain name to provide third party links is not a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See Vance Int'l, Inc. v. Abend, FA 970871 (Forum June 8, 2007) (concluding that the operation of a pay-per-click website at a confusingly similar domain name does not represent a bona fide offering of goods or services or a legitimate noncommercial or fair use, regardless of whether or not the links resolve to competing or unrelated websites or if the respondent is itself commercially profiting from the click-through fees); see also Vapor Blast Mfg. Co. v. R & S Tech., Inc., FA 96577 (Forum Feb. 27, 2001) (finding that Respondent's commercial use of the domain name to confuse and divert internet traffic is not a legitimate use of the domain name). Complainant provides a screenshot showing that the disputed domain name resolves to a parked page with links such as "Urea Fertilizer". The Panel finds that this is not a bona fide offering of goods or services or a legitimate noncommercial or fair use, and thus Respondent has no rights under Policy ¶¶ 4(c)(i) or (iii).

 

The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).

 

Registration and Use in Bad Faith

Complainant claims that Respondent registered and uses the <jrsimplot.org> domain name in bad faith to divert Internet users to its website featuring a parked page with links. The Panel agrees and finds bad faith attraction for commercial gain under Policy ¶ 4(b)(iv).  See CFA Properties, Inc. v. El Mariache/ Mariache Corp, FA 1660175 (Forum Mar. 8, 2016) (finding bad faith registration and use because "Respondent used the <chickfilafoundation.org> domain name to attract Internet users for commercial gain because the resolving website contains links to third party businesses, from which Respondent presumably receives pay-per-click fees".)

 

The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <jrsimplot.org> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Sandra J. Franklin, Panelist

Dated: January 4, 2024