Generic Top Level Domain Name (gTLD) Decisions

The Complainant is Agri-Cover, Inc., Jamestown, ND, USA ("Complainant") represented by Nicole A. Engisch, Leonard, Street and Deinard. The Respondent is Shur-Co, Yankton, SD, USA ("Respondent").

The domain name at issue is "agricover.com" registered with Register.com.

The undersigned certifies that he or she has acted independently and impartially and to the best of his knowledge, has no known conflict in serving as a panelist in this proceeding.

Judge Ralph Yachnin, as Panelist.

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on December 7, 2000; The Forum received a hard copy of the Complaint on December 7, 2000.

On December 12, 2000, Register.com confirmed by e-mail to the Forum that the domain name "agricover.com" is registered with Register.com and that the Respondent is the current registrant of the name. Register.com has verified that Respondent is bound by the Register.com registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANNís Uniform Domain Name Dispute Resolution Policy (the "Policy").

On December 13, 2000, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 2, 2001 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 Respondentís registration as technical, administrative and billing contacts, and to postmaster@agricover.com by e-mail.

Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the Forum transmitted to the parties a Notification of Respondent Default.

On January 4, 2001, pursuant to Complainantís request to have the dispute decided by a One Member panel, the Forum appointed Judge Ralph Yachnin 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." Therefore, the Panel may issue its Decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forumís Supplemental Rules and any rules and principles of law that the panel deems applicable, without the benefit of any Response from the Respondent.

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

A. Complainant

Complainant asserts that Respondentís domain name, agricover.com, is confusingly similar to its registered mark, AGRI-COVER. In addition, Respondent has no rights or legitimate interests in the domain name at issue. And finally, Respondent has registered and used the domain name in bad faith by registering the domain name with the intent to: (i) sell it to Complainant for economic gain; (ii) preclude Complainant from registering the domain name; (iii) establish a web site that would divert web-based traffic meant for Complainant to Respondent; or (iv) passively hold the domain name.

B. Respondent

Respondent has not submitted a response in this matter.

Complainant, Agri-Cover, Inc., produces truck covers and related products. Complainant has owned the registered mark AGRI-COVER since March of 1992. Complainant has used the mark extensively in association with its existing product line since 1981. Currently, the public has come to associate the Complainantís mark as signifying a single source of origin for truck covers and related products offered by Complainant.

Respondent, Shur-Co, registered the domain name in question on June 30, 1999, more than 17 years after Complainantís first use. On or about October 4, 2000, Complainantís counsel sent Respondent a cease and desist letter pertaining to the domain name at issue, to which Complainant received no response.

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 the Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules.

Paragraph 4(a) of the 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.

According to the UDRP, Complainant must demonstrate that it has rights in a mark, and that the domain name at issue is identical or confusingly similar to that mark.

Complainantís rights are evidenced by its registered mark, AGRI-COVER. Respondentís domain name, agricover.com, is found to be confusingly similar to Complainantís mark. Policy  4.a.(i). The primary distinction between the domain name at issue and Complainantís mark is the deleted hyphen. See The Ritz-Carlton Hotel Co. v. Club Car Executive Transportation and Dennis Rooney, D2000-0611 (WIPO Sept. 18, 2000) (finding that removing a hyphen in the domain names is not sufficient to differentiate the domain names from the mark); see also Dollar Financial Group, Inc. v. Advanced Legal Systems, Inc., FA 95102 (Nat. Arb. Forum Aug. 14, 2000) (finding that the domain name <loan-mart.com> is confusingly similar to the Complainantís mark).

The Panel finds that Complainant met its burden of showing that the domain name at issue is confusingly similar to its mark.

Respondent asserted no rights or legitimate interests in the domain name at issue. Respondent is not commonly known by the domain name, nor is Respondent using the domain name in connection with a bona fide offering of goods, services, or for a legitimate noncommercial or fair use. Policy  4.c.(i), (ii) and (iii). See Hartford Fire Ins. Co. v. Webdeal.com, Inc., FA 95162 (Nat. Arb. Forum Aug. 29, 2000) (finding that Respondent has no rights or legitimate interests in domain names because it is not commonly known by Complainantís marks and Respondent has not used the domain names in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use).

Thus, Respondentís failure to show evidence sufficient to rebut Complainantís allegations, entitles the Panel to conclude that Respondent has no such rights or legitimate interests in regard to the domain name in question. See Pavillion Agency, Inc., Cliff Greenhouse and Keith Greenhouse v. Greenhouse Agency Ltd., and Glenn Greenhouse, D2000-1221 (WIPO Dec. 4, 2000) (finding that "Respondentsí failure to respond can be construed as an admission that they have no legitimate interest in the Domain Names").

The Panel finds that Respondent has no rights to or legitimate interests in the domain name at issue.

There is no evidence provided to support Complainantís first three assertions of bad faith. However, the fourth assertion is well founded. Accordingly, Respondent has registered and used the domain name at issue in bad faith because it has made no use of the domain name since registration, which constitutes "passive holding". See Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that merely holding an infringing domain name without active use can constitute use in bad faith); see also Telstra Corp. v. Nuclear Marshmallows, D2000-0003 (WIPO Feb. 18, 2000) (finding that passive holding of a domain name can equate to bad faith); ("[I]t is possible, in certain circumstances, for inactivity by the Respondent to amount to the domain name being used in bad faith").

Moreover, the Panel finds, prior to registering the domain name at issue, Respondent was aware of Complainantís famous mark. See Reuters Ltd. v. Teletrust IPR Ltd., D2000-0471 (WIPO Sept. 8, 2000) (finding that the Respondent demonstrated bad faith where the Respondent was aware of the Complainantís famous mark when registering the domain name as well as aware of the deception and confusion that would inevitably follow if he used the domain names).

Therefore, the Panel finds the Respondent registered the domain name in question in bad faith.

Having established all three elements required under the ICANN Policy, the Panel concludes that the requested relief shall be and is hereby granted. Accordingly, it is Ordered that the domain name agricover.com be transferred from Respondent to Complainant.