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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Tractor Supply Company v. Forum LLC

Case No. D2006-1320

 

1. The Parties

The Complainant is Tractor Supply Company, Nashville, Tennessee, United States of America, represented by Waller Lansden Dortch and Davis, PLLC, United States of America.

The Respondent is Forum LLC, Domain Admin, Roseau, Dominica.

 

2. The Domain Name and Registrar

The disputed domain name <tractorsupplycompany.com> (herein, “Domain Name”) is registered with Moniker Online Services, LLC.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 11, 2006. On October 16, 2006, the Center transmitted by email to Moniker Online Services, LLC a request for registrar verification in connection with the Domain Name. On October 20, 2006, Moniker Online Services, LLC transmitted by email to the Center its verification response identifying the owner of the registered owner of the Domain Name. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on October 30, 2006. The Center verified that the Complaint with the amendment thereto (herein collectively, “Complaint”, for simplicity of expression), satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).

In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on November 2, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was November 22, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 23, 2006.

The Center appointed Mark Ming-Jen Yang as the sole panelist in this matter on December 1, 2006. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.

 

4. Factual Background

The Complainant has two US trademark registrations for the mark TRACTOR SUPPLY CO. (herein collectively, “Trademarks” for simplicity of expression):

No. 1,846,015 for TSC TRACTOR SUPPLY CO. (and design) for “retail stores featuring hardware; automotive supplies; household supplies; apparel; pet foods and pet supplies; farm supplies; swimming pool supplies and lawn care equipment; and mail order catalog services featuring hardware; automotive supplies; pet foods and pet supplies; farm supplies; namely fencing, livestock feeds, mineral supplements, livestock feeders and waterers, veterinary supplies, rope and twine; sprayers; pumps; paints and painter’s supplies; air compressors; welders and welding supplies; and electrical and gas heaters.”

No. 3,039,473 for TRACTOR SUPPLY CO. (standard characters) for “retail store services in the field of animal care, home improvement, recreation, and apparel; retail store services in the field of automotive accessories, namely batteries, lubricants, tarps, truck toolboxes, trailers, towing parts, and fuel tanks; retail store services in the field of maintenance equipment, namely air compressors, welders, generators, pumps, electrical products, plumbing, and paint; retail store services in the field of lawn and garden products, namely seed and bulbs, fertilizer, windmills, and yard accessories.”

 

5. Parties’ Contentions

A. Complainant

Complainant contends that the Domain Name is confusingly similar with the Trademarks in which it has rights, that Respondent has no legitimate interest in the Domain Name and that Respondent registered and uses the Domain Name in bad faith.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

 

6. Discussion and Findings

One requirement of fundamental due process is that a respondent has notice of proceedings that may substantially affect its rights. The Policy, Rules and Supplemental Rules establish procedures intended to assure that a respondent is given adequate notice of proceedings commenced against it, and a reasonable opportunity to respond (see, e.g., Rules, paragraph 2(a)).

In this case, this Panel is satisfied that the Center took all steps reasonably necessary to notify Respondent of the filing of the Complaint and initiation of these proceedings, and that the failure of Respondent to furnish a Response to the Complaint is not due to any omission by the Center. There is sufficient evidence in the case file for this Panel to conclude that the Center discharged its obligations under Rules, paragraph 2(a) (see Procedural History, supra).

In case of default, under paragraph 14(a) of the Rules, “the Panel shall proceed to a decision on the complaint”, and under paragraph 14(b) of the Rules, “the Panel shall draw such inferences [from the default] as it considers appropriate”. Furthermore, paragraph 15(a) of the Rules provides that a “Panel shall 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 appropriate”. Since Respondent has not submitted any evidence, the Panel must render its decision on the basis of the uncontroverted evidence supplied by Complainant.

In accordance with paragraph 4(a) of the Policy, to succeed in this UDRP proceeding, Complainant must prove (i) that the Domain Name is identical or confusingly similar to a trademark in which it has rights, and (ii) that Respondent has no rights or legitimate interests in respect of the Domain Name, and (iii) that the Domain Name was registered and is being used in bad faith. These requirements will be considered in turn below.

A. Identical or Confusingly Similar

Complainant contends that it has rights in its Trademarks. Complainant contends (and the Panel accepts as uncontroverted) the following (excerpted from the Complaint).

“Since as early as 1938, and well prior to the advent of the Internet, Complainant, or it predecessors in interest, has operated a retail business under the name Tractor Supply Company….Today, Tractor Supply Company is a well-known publicly traded company. With 657 stores in 37 states, Tractor Supply Company is one of the largest retail stores in America and is among the leading farm and ranch brands in the United States….a “small replacement parts catalog company that became the No. 1 Farm and Ranch Store chain in the world, a billion-dollar business that Forbes magazine has ranked among the best managed companies in America.” ….Complainant’s TRACTOR SUPPLY CO. mark is widely known to consumers to identify specifically its chain of retail stores and has acquired distinctiveness by virtue of its over 60 years of widespread use. Complainant has invested substantial time, expense and effort in the creation of goodwill and fame surrounding the TSC TRACTOR SUPPLY CO. and the TRACTOR SUPPLY CO. marks and has acquired valid and far-reaching common law trademark rights therein.”

Furthermore, Complainant contends that the Domain Name is nearly identical to its Trademarks. The only differences are the natural expansion of “co” to “company”, and addition of the gTLD component “.com”, and Complainant contends that these differences are not of any significance in law to avoid confusion.

Based on the case file, the Panel accepts that the Complainant has rights in the Trademarks and finds that the Domain Name is confusingly similar to those Trademarks. The Panel concludes that the first requirement of the Policy is met.

B. Rights or Legitimate Interests

Complainant contends that Respondent has no rights or legitimate interests in the Domain Name. In particular, Complainant contends that it would be impossible for Respondent to use the Domain Name as the name of any business, product or service for which it would be commercially useful without violating Complainant’s rights. In other words, Complainant contends that Respondent cannot make a legitimate use of the Trademarks.

Respondent has provided no arguments or evidence of legitimate interests to counter Complainant’s contentions on this issue. By virtue of the legal status of the Trademarks as registered trademarks of Complainant, and Complainant’s uncontroverted contentions about its business with the Trademarks in the United States of America (see section 6A above), Complainant convincingly argues that Respondent has no rights or legitimate interests in the Domain Name. The Panel, especially in the absence of any response from the Respondent, considers that the circumstances described in paragraph 4(c) of the Policy, of proof of legitimate interest by Respondent in the Domain Name, likely do not exist.

The Panel concludes that the second requirement of the Policy is met.

C. Registered and Used in Bad Faith

Complainant contends that Respondent registered and uses the Domain Name in bad faith.

Complainant contends that Respondent registered the Domain Name in 2002, with knowledge of Complainant’s rights in its Trademarks and of its reputation with its Trademarks in the marketplace; that Respondent is using the Domain Name to misleadingly divert Internet traffic to its own website away from Complainant’s website to those of the Complainant’s competitors; and that Respondent is engaged in a systematic practice of registering and using domain names in bad faith. Upon learning of the true owner of the Domain Name, Complainant located the following decisions, whose summaries are worth setting out in their entirety, though tedious, to characterize the Respondent’s intentions and actions.

Anheuser-Busch, Incorporated v. Forum LLC, NAF Claim No. FA0608000771335 (October 2, 2006) (“Respondent is using this confusion to its advantage by presumably collecting click through fees from the links to third-party websites featured on Respondent’s website. The Panel finds that such use is evidence of bad faith registration and use pursuant to Policy”).

Media West - GRS, Inc., Media West - MNC, Inc., Gannett Pacific Corporation, Gannett Co., Inc., Gannett River States Publishing Corp., Guam Publications and Incorporated v. Moniker Privacy Services / Forum LLC / Registrant (187640) info@fashionid.com, WIPO Case No. D2006-0478 (June 12, 2006) (“..the Respondents intend to take advantage of the Complainants’ popularity by redirecting traffic from Internet users looking for the Complainants, but misspelling the name. This form of “typosquatting” is considered bad faith within the meaning of the Policy”).

Saint-Gobain Performance Plastics Corporation v. Forum LLC, WIPO Case No. D2006-0204 (April 10, 2006) (“The Panel concludes that the information provided by the Complainant, including the Respondent’s history, indicates bad faith in the acquisition and use of the subject domain name...”).

East Kentucky Network LLC v. Forum LLC, NAF Case No. 528216 (September 22, 2005) (“The Respondent’s blemished track record of other domain name registrations and previous UDRP proceedings also leads the Panel to the belief that the domain name in dispute was registered and is being used in bad faith”).

PepsiCo, Inc., v. Forum LLC, WIPO Case No. D2005-0737 (September 13, 2005) (“It is clear that the Respondent is registering domain names including third party trademarks in order to create revenue for itself. The Panel is, therefore, of the opinion that the registration and use of the disputed Domain Name by the Respondent was made in bad faith”).

Grand Lodge Fraternal Order of Police v. Forum LLC, NAF Claim No. 493393 (July 28, 2005) (“Respondent takes advantage of this Internet user confusion by earning click-through fees through links, search engines, and pop-up advertisements on its website. The Panel holds that Respondent’s diversionary use of the disputed domain name constitutes bad faith registration and use under Policy”).

The Coryn Group, Inc. v. Forum LLC, NAF Case No. 473209 (June 21, 2005) (“The Panel finds that Respondent’s commercial use of the <aplevacations.com> domain name constitutes bad faith registration and use pursuant to Policy 4(b)(iv)”).

Woodfield Licensing Corp. v. Forum LLC, NAF Case No. 464615 May 31, 2005) (“Such use constitutes disruption and is evidence that Respondent registered and used the domain names in bad faith pursuant to Policy 4(b)(iii)”).

Enterprise Rent-A-Car Co. v. Forum LCC, NAF Claim No. 445529 (May 5, 2005) (Thus, the Panel finds that Respondent’s commercial use of the <enterprisecarental.com> constitutes bad faith registration and use pursuant to Policy 4(b)(iv)”).

Hancock Fabrics, Inc. v. Forum LLC, NAF Case No. 447259 (May 3, 2005) (“Respondent has also failed to rebut Complainant’s assertion that Respondent, in fact, registered and used the disputed domain name in bad faith. In these circumstances, and consistent with prior decisions under the Policy, the Panel finds that Respondent is in violation of Policy 4(b)(iv)”).

Hilton Group plc v. Forum LLC, WIPO Case No. D2005-0244 (April 22, 2005) (“The Panel finds this to be clear evidence of the intention by the Respondent to attract Internet users for commercial gain, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website or of a product or service on the Respondent’s website. Therefore, the Panel finds that the domain name is being used in bad faith”).

Sotheby’s v. Forum LLC, NAF Claim No. 409449 (March 15, 2005) (“the Panel finds that Respondent chose the <sothbys.com> domain name based on the distinctive and well-known qualities of Complainant’s mark, which evidences bad faith registration and use under Policy 4(a)(iii)”).

Starwood Hotels and Resorts Worldwide, Inc. v. Forum LLC, NAF Claim No. 406631 (March 14, 2005) (the Panel finds that since Respondent is commercially benefiting from using a confusingly similar domain name, Respondent is using the domain name in bad faith pursuant to Policy 4(b)(iv)”).

Woodfield Licensing Corp. v. Forum LLC, NAF Claim No. 405064 (March 4, 2005) (“The Panel finds that, by creating confusion around Complainant’s mark, Respondent is attempting to disrupt Complainant’s business. Therefore, the Panel concludes that Respondent registered and use the disputed domain name in bad faith pursuant to Policy 4(b)(iii)”).

The Complainant observed that each case it located, held that Forum LLC’s use of the domain name in question constituted bad faith, and that Complainant knew of no UDRP decision where Forum LLC was found not to be using a domain name in bad faith.

The Panel accepts Complainant’s contentions and finds that they are indicative of Respondent’s bad faith registration and use, especially in the absence of any counter-arguments or evidence to the contrary from Respondent.

The Panel concludes that the third requirement of the Policy is met.

 

7. Decision

For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name <tractorsupplycompany.com> be transferred to the Complainant.


Mark Ming-Jen Yang
Sole Panelist

Dated: December 15, 2006

 

Источник информации: https://internet-law.ru/intlaw/udrp/2006/d2006-1320.html

 

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