Agri-Cover, Inc. v. Nada
Claim Number: FA0702000921970
Complainant is Agri-Cover, Inc. (“Complainant”), represented by Richard
A. Kempf, of Moore & Hansen, PLLP,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <agri-cover.com>, registered with Domain Contender, 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.
Judge Ralph Yachnin as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On February 26, 2007, Domain Contender, LLC confirmed by e-mail to the National Arbitration Forum that the <agri-cover.com> domain name is registered with Domain Contender, LLC and that Respondent is the current registrant of the name. Domain Contender, LLC has verified that Respondent is bound by the Domain Contender, LLC registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On March 5, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 26, 2007 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@agri-cover.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration 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 makes the following assertions:
1. Respondent’s <agri-cover.com> domain name is identical to Complainant’s AGRI-COVER mark.
2. Respondent does not have any rights or legitimate interests in the <agri-cover.com> domain name.
3. Respondent registered and used the <agri-cover.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Agri-Cover, Inc.,
is a manufacturer and seller of a variety of products employed in the truck
industry. Complainant uses its
AGRI-COVER mark in connection with the promotion and sale of fitted pickup
truck covers. Complainant holds a
trademark registration with the United States Patent and Trademark Office
(“USPTO”) for the AGRI-COVER mark (Reg. No. 1,680,243 issued March 24,
1992). Complainant also operates a
website at the <agricover.com> domain name.
Respondent registered the <agri-cover.com>
domain name on
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."
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.”).
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.
The Panel finds that Complainant’s trademark registration
with the USPTO sufficiently establishes Complainant’s rights in the AGRI-COVER
mark pursuant to Policy ¶ 4(a)(i). See Ameridream, Inc. v.
Russell, FA 677782 (Nat. Arb. Forum May 24, 2006) (holding
that with the complainant’s registration of the AMERIDREAM mark with the USPTO,
the complainant had established rights in the mark pursuant to Policy ¶
4(a)(i)); see also AOL LLC v. Interrante, FA 681239 (Nat. Arb. Forum
The Panel finds that Respondent’s <agri-cover.com> domain name is identical to
Complainant’s AGRI-COVER mark because the disputed domain name contains
Complainant’s mark in its entirety with the addition of the generic top-level
domain (“gTLD”) “.com.” The addition of
a gTLD is irrelevant when conducting a Policy ¶ 4(a)(i)
analysis, as a gTLD is required of all domain names. Accordingly, the disputed domain name is
identical to Complainant’s mark under Policy ¶ 4(a)(i). See W. Union Holdings, Inc. v. Topiwala,
D2005-0945 (WIPO Oct. 20, 2005) (finding <wuib.com> identical to the
complainant’s mark because the generic top-level domain (gTLD) “.com” after the
name WUIB is part of the Internet address and does not add source-identifying
significance); see also Treeforms, Inc. v. Cayne Indus. Sales, Corp.,
FA 95856 (Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant initially must establish that Respondent lacks
rights and legitimate interests with respect to the <agri-cover.com> domain name. However, once Complainant makes a prima facie case, the burden of proof
shifts, and Respondent must prove that it has rights or legitimate interests in
the disputed domain name. See Do
The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000)
(holding that once the complainant asserts that the respondent has no rights or
legitimate interests with respect to the domain, the burden shifts to the
respondent to provide “concrete evidence that it has rights to or legitimate
interests in the domain name at issue”); see
also G.D. Searle v. Martin Mktg.,
FA 118277 (Nat. Arb. Forum
Respondent is using the disputed domain name to host a website that displays hyperlinks to various third-party websites in direct competition with Complainant. The Panel infers that Respondent is using the <agri-cover.com> domain name to earn click-through fees and accordingly finds that Respondent has not made 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). See Charles Letts & Co. v. Citipublications, FA 692150 (Nat. Arb. Forum July 17, 2006) (finding that the respondent’s use of a domain name that was confusingly similar to the complainant’s mark to display links to the complainant’s competitors did 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)); see also TM Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb. Forum Dec. 31, 2002) (finding that the respondent’s diversionary use of the complainant’s marks to send Internet users to a website which displayed a series of links, some of which linked to the complainant’s competitors, was not a bona fide offering of goods or services).
Additionally, Respondent’s WHOIS information does not
indicate that Respondent is commonly known by the <agri-cover.com> domain name and there is no other
evidence in the record to suggest that Respondent is commonly known by the disputed
domain name. Complainant also states
that Respondent is not authorized to use Complainant’s AGRI-COVER mark and that
Respondent is not associated with Complainant in any way. In Gallup, Inc. v. Amish Country Store, FA 96209 (Nat. Arb.
Forum
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Based on the uncontested evidence presented by Complainant,
the Panel finds that Respondent receives click-through fees for the hyperlinks
displayed on the website that resolves from the <agri-cover.com> domain name. The Panel also finds that Respondent’s
disputed domain name is capable of creating a likelihood of confusion as to
Complainant’s sponsorship and affiliation with the disputed domain name and
corresponding website. Such commercial
benefit constitutes bad faith registration and use under Policy ¶ 4(b)(iv). See Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003) (“Respondent's
prior use of the <mailonsunday.com> domain name is evidence of bad faith
pursuant to Policy ¶ 4(b)(iv) because the domain name provided links to
Complainant's competitors and Respondent presumably commercially benefited from
the misleading domain name by receiving ‘click-through-fees.’”); see also Drs. Foster & Smith, Inc. v. Lalli, FA 95284 (Nat. Arb. Forum
Moreover, the Panel
finds that Respondent is using the <agri-cover.com>
domain name to redirect Internet users to a website that contains third-party
hyperlinks to direct competitors of Complainant. Such use constitutes a disruption of
Complainant’s business and is evidence of bad faith registration and use under Policy
¶ 4(b)(iii). See EBAY, Inc. v. MEOdesigns, D2000-1368
(WIPO Dec. 15, 2000) (finding that the respondent registered and used the
domain name <eebay.com> in bad faith where the respondent has used the
domain name to promote competing auction sites); see also Puckett, Individually v. Miller, D2000-0297 (WIPO June 12,
2000) (finding that the respondent has diverted business from the complainant
to a competitor’s website in violation of Policy ¶ 4(b)(iii)).
The Panel finds that
Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <agri-cover.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated:
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