Generic Top Level Domain Name (gTLD) Decisions

The Complainant is TheAgZone, Inc., Fresno, CA, USA ("Complainant") represented by John G. Michael, Esq., Baker, Manock & Jensen. The Respondent is Cody Heer, Bismark, ND, USA ("Respondent").

The domain name at issue is "agzone.com" registered with Network Solutions.

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 the panelist in this proceeding.

Judge Harold Kalina (Ret.) as Panelist.

Complainant submitted a Complaint to the National Arbitration Forum ("The Forum") electronically on October 31, 2000; The Forum received a hard copy of the Complaint on October 31, 2000.

On November 01, 2000, Network Solutions confirmed by e-mail to The Forum that the domain name "agzone.com" is registered with Network Solutions and that the Respondent is the current registrant of the name. Network Solutions has verified that Respondent is bound by the Network Solutions 5.0 registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s UDRP.

On November 2, 2000, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of November 22, 2000 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@agzone.com by e-mail.

On December 5, 2000, pursuant to Complainant’s request to have the dispute decided by a One Member panel, the Forum appointed Judge Harold Kalina (Ret.)as Panelist.

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

A. Complainant

Complainant states that it is the owner of the domain name THEAGZONE.COM and has applications pending in the U.S. Patent & Trademark Office for the registration of the following word marks: THEAGZONE.COM, THEAGZONE.COM with design, and THEAGZONE with design. Complainant’s domain name and word marks are currently being used in its business operation. Complainant asserts that Respondent’s domain name AGZONE.COM is confusingly similar to Complainant’s domain name and word marks. The only distinction being that the word "the" which is present in Complainant’s marks is absent in Respondent’s domain name AGZONE.COM. Complainant contends that the marks are confusingly similar and internet users looking for THEAGZONE.COM who are unaware of the word "the" in Complainant’s domain name, or who erroneously type in AGZONE.COM instead of THEAGZONE.COM will be taken to Respondent’s web site, or ported to another site of a direct competitor of Complainant. Because of the similarity of the domain names, and the word marks, there is a substantial likelihood of consumer confusion.

Complainant asserts that Respondent has no rights or legitimate interests in the domain name AGZONE.COM for the following reasons: Respondent is not currently using the domain name for any legitimate commercial purpose, that no AGZONE.COM site exists, and Respondent is porting users who type AGZONE.COM to the site FARMBID.COM, a direct competitor of Complainant. That Respondent’s actions tarnishes and dilutes the rights Complainant has to its domain name and word marks. Further, Respondent, by using the domain name AGZONE.COM is intentionally attempting to attract, for commercial gain, internet users to a direct competitor. That Respondent’s actions are creating a likelihood of confusion, as to the source, sponsorship, affiliation, or endorsement of this competitor’s web site.

Complainant contends that Respondent registered the domain name in bad faith and is continuing to use it in bad faith. As evidence, Complainant asserts that Respondent has had no activity on the site for nine (9) months. That Respondent offered to assign the rights to the domain name to Complainant upon payment of $180,000.00. Complainant refused to pay what he terms to be an "outrageous price". Complainant contends that Respondent began porting users who type AGZONE.COM to the site of FARMBID.COM in an attempt to inflict economic duress on Complainant to force Complainant to comply with Respondent’s demand for consideration far exceeding his out-of-pocket costs directly related to the domain name. Complainant contends that Respondent’s use of the domain name is primarily for the purpose of selling the domain name, for an "outrageous price"

B. Respondent

Respondent states that he created and acquired the rights to the domain name AGZONE.COM on August 6, 1997, and was last updated on November 7, 2000. That Complainant’s domain name THEAGZONE.COM was created and Complainant’s rights to it acquired on April 7, 1999, approximately one year and three months after Respondent’s registration. Respondent asserts rights to the domain name. That until nine (9) months ago he was actively using the domain name and did marketing and promotion on this name to sell bee keeping supplies under the business name Bee Toolz Div. During this period of inactivity with his business, he has re-routed the domain name to a site similar to what he wants to build, so that traffic he had generated in the sale of bee keeping supplies would not be lost in the interim, between the shutdown and start up of a new portal. Respondent states that his future objective is to establish an all inclusive ag. site. That had he wanted to only sell bee supplies, he would have chosen a name that identified that product. He is currently in the middle of negotiating a contract with a web design entity to use its portal software upon the site when completed. Respondent states that he intends to develop his portal plan as time allows. Respondent asserts he is making legitimate use of the domain name.

Respondent contends that if anyone is at fault, it is the Complainant for not being more careful in what domain name it chose. Respondent states that Complainant’s domain name is "deceptively similar" to his, and this is causing frequent calls from customers confused by the addresses. Respondent has requested Complainant to "cease and desist" use of its domain name or else purchase Respondent’s domain name for the sum of $180,000.00.

Paragraph 4(a) of the ICANN Uniform Domain Name Dispute Policy ("Policy") requires that the 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 the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;

(2) the 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.

Complainant having failed to establish all three elements required by ICANN Policy Rule 4(a), it is the decision of the undersigned that relief sought by Complainant be denied.