DECISION

Bert & Wetta Sales, Inc. v. Pyramid Agricultural Products Int'l

Claim Number:  FA0301000143680

PARTIES

Complainant is Bert & Wetta Sales, Inc., Larned, KS (“Complainant”). Respondent is Pyramid Agricultural Products Int'l, Larned, KS (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <usalfalfa.com>, registered with Network Solutions, Inc.

PANEL

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.

John J. Upchurch as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on January 28, 2003; the Forum received a hard copy of the Complaint on January 30, 2003.

On February 3, 2003, Network Solutions, Inc. confirmed by e-mail to the Forum that the domain name <usalfalfa.com> is registered with Network Solutions, Inc. and that Respondent is the current registrant of the name. Network Solutions, Inc. has verified that Respondent is bound by the Network Solutions, Inc. 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 February 3, 2003, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of February 24, 2003 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@usalfalfa.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 March 4, 2003, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed John J. Upchurch 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 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 makes the following assertions:

1. Respondent’s <usalfalfa.com> domain name is identical to Complainant’s US ALFALFA mark.

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

3. Respondent registered and used the <usalfalfa.com> domain name in bad faith.

B.  Respondent failed to submit a Response in this proceeding.

FINDINGS

Complainant holds a trademark registration with the United States Patent and Trademark Office (“USPTO”) for US ALFALFA THE PREMIUM QUALITY HAY FOR HORSES (Reg. No. 1,528,518, registered March 7, 1989) related to animal feed, namely dehydrated chopped alfalfa. Complainant also holds a trademark registration with the USPTO for US ALFALFA (Reg. No. 2,549,053, registered March 19, 2002) related to dehydrated chopped alfalfa.

Respondent registered the disputed domain name on March 26, 1998. Respondent has not posted content at the disputed domain name.

DISCUSSION

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.

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.

Identical and/or Confusingly Similar

Complainant has established that it has rights in the US ALFALFA mark through registration with the USPTO. Furthermore, the address of the administrative contact listed by Respondent with the registrar is Larned, KS, which is the same address listed by the Complainant. The Panel may infer that Respondent had actual knowledge of Complainant’s mark beyond the constructive knowledge provided by Complainant’s registration of the US ALFALFA mark with the USPTO because of Respondent’s close proximity to Complainant.

Respondent’s <usalfalfa.com> domain name is identical to Complainant’s mark because the disputed domain name incorporates Complainant’s entire mark and simply adds the top-level domain “.com.” The addition of a top-level domain is not a distinguishing characteristic when determining if a domain name and a mark are identical. See Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar); see also Blue Sky Software Corp. v. Digital Sierra Inc., D2000-0165 (WIPO Apr. 27, 2000) (holding that the domain name <robohelp.com> is identical to Complainant’s registered ROBOHELP trademark, and that the "addition of .com is not a distinguishing difference").

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

Rights or Legitimate Interests

Respondent has not provided the Panel with a response in this proceeding. Thus, the Panel is permitted to make reasonable inferences in favor of Complainant and accept the Complaint’s reasonable allegations as true. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that Respondent’s failure to respond allows all reasonable inferences of fact in the allegations of Complainant 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”).

Moreover, Respondent has failed to invoke any circumstances that could demonstrate rights or legitimate interests in the <usalfalfa.com> domain name. If Complainant asserts a prima facie case against Respondent, then the burden of proof shifts to Respondent to show that it has rights and legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). See Geocities v. Geociites.com, D2000-0326 (WIPO June 19, 2000) (finding that Respondent has no rights or legitimate interests in the domain name because the Respondent never submitted a response nor provided the Panel with evidence to suggest otherwise); see also Parfums Christian Dior v. QTR Corp., D2000-0023 (WIPO Mar. 9, 2000) (finding that by not submitting a Response, Respondent has failed to invoke any circumstance which could demonstrate any rights or legitimate interests in the domain name).

At this time, there is no content posted at the <usalfalfa.com> domain name. Passive holding is not a use in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii). See Am. Home Prod. Corp. v. Malgioglio, D2000-1602 (WIPO Feb. 19, 2001) (finding no rights or legitimate interests in the domain name <solgarvitamins.com> where Respondent merely passively held the domain name); see also Vestel Elektronik Sanayi ve Ticaret AS v. Kahveci, D2000-1244 (WIPO Nov. 11, 2000) (finding that “merely registering the domain name is not sufficient to establish rights or legitimate interests for purposes of paragraph 4(a)(ii) of the Policy”).

Respondent has failed to provide the Panel with any proof and there is no evidence on record to establish that Respondent is commonly known by US ALFALFA or <usalfalfa.com>. Therefore, Respondent has failed to establish that it has any rights or legitimate interests in the domain name pursuant to Policy ¶ 4(c)(ii). See Broadcom Corp. v. Intellifone Corp., FA 96356 (Nat. Arb. Forum Feb. 5, 2001) (finding no rights or legitimate interests because Respondent is not commonly known by the disputed domain name or using the domain name in connection with a legitimate or fair use); see also 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 Complainant’s 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).

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

Registration and Use in Bad Faith

Respondent offered to sell the rights to the disputed domain name to Complainant for $500,000. This offer to sell indicates that Respondent registered the <usalfalfa.com> domain name primarily for the purpose of selling it to Complainant, which is evidence of bad faith pursuant to Policy ¶ 4(b)(i). See Am. Online, Inc. v. Avrasya Yayincilik Danismanlik Ltd., FA 93679 (Nat. Arb. Forum Mar. 16, 2000) (finding bad faith where Respondent offered domain names for sale); see also Pocatello Idaho Auditorium Dist. v. CES Marketing Group, Inc., FA 103186 (Nat. Arb. Forum Feb. 21, 2002) ("[w]hat makes an offer to sell a domain [name] bad faith is some accompanying evidence that the domain name was registered because of its value that is in some way dependent on the trademark of another, and then an offer to sell it to the trademark owner or a competitor of the trademark owner").

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

DECISION

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

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

John J. Upchurch , Panelist

Dated:  March 12, 2003

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