DECISION

Pioneer Hi-Bred International Inc. v. Henry Chan

Claim Number:  FA0401000231885

PARTIES

Complainant is Pioneer Hi-Bred International Inc. (“Complainant”) represented by Mark Sommers, of Finnegan Henderson Farabow Garrett & Dunner L.L.P. ,1300 I Street NW, Washington, DC 20005.  Respondent is Henry Chan (“Respondent”), P.O. Box SS-6348/A124, Nassau, Bahamas.

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <pioneergrowingpoint.com>, registered with Iholdings.com, Inc. d/b/a Dotregistrar.com.

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.

James A. Carmody, Esq., as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on January 28, 2004; the Forum received a hard copy of the Complaint on January 29, 2004.

On January 30, 2004, Iholdings.com, Inc. d/b/a Dotregistrar.com confirmed by e-mail to the Forum that the domain name <pioneergrowingpoint.com> is registered with Iholdings.com, Inc. d/b/a Dotregistrar.com and that Respondent is the current registrant of the name. Iholdings.com, Inc. d/b/a Dotregistrar.com has verified that Respondent is bound by the Iholdings.com, Inc. d/b/a Dotregistrar.com 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 4, 2004, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of February 24, 2004 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@pioneergrowingpoint.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 2, 2004, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed James A. Carmody, Esq., 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 <pioneergrowingpoint.com> domain name is confusingly similar to Complainant’s PIONEER and GROWINGPOINT marks.

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

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

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

FINDINGS

Complainant, Pioneer Hi-Bred International, Inc., is a global leader in the agricultural industry and the largest provider of agricultural seed in the world. Complainant holds several trademark registrations with the United States Patent and Trademark Office for the PIONEER mark (Reg. No. 84,443, issued December 12, 1911, Reg. No. 726,844, issued January 30, 1962, Reg. No. 770,971, issued June 9, 1964, and Reg. No. 778,911, issued October 27, 1964) for various agricultural seed and related goods and services for numerous countries throughout the world. Complainant also holds a U.S. trademark registration for the GROWINGPOINT mark (Reg. No. 2,632,728, issued October 8, 2002).

Complainant’s main website is located at the domain name <pioneer.com>. This website is very popular with the agricultural and farming community and receives on average 10-15 million hits per month. Complainant also offers extensive marketing services, online services, and publications under the marks GROWINGPOINT and PIONEER GROWINGPOINT. The PIONEER GROWINGPOINT website is available via the main website and provides users with information about profitable crop production. The PIONEER GROWINGPOINT website is also widely used in the agricultural community and receives over 450,000 hits per month and has over 50,000 registered users.

Respondent registered the disputed domain name on November 24, 2003. Respondent is using the disputed domain name to divert internet users to the DomainSponsor.com affiliate website, which offers Internet search services, including many agriculture-related links associated with Complainant’s business. DomainSponsor.com pays commissions to domain name owners for revenues granted from searches.

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 rights to the PIONEER and GROWINGPOINT marks through registration with the United States Patent and Trademark Office.

Respondent’s <pioneergrowingpoint.com> domain name is confusingly similar to Complainant’s marks because the disputed domain name merely combines Complainant’s two registered marks. The combination of the marks PIONEER and GROWINGPOINT does not sufficiently differentiate the domain name from the two registered marks with regard to Policy ¶ 4(a)(i) because Complainant’s marks continue to be the dominant element of Respondent’s domain name. See Nintendo of Am. Inc v. Pokemon, D2000-1230 (WIPO Nov. 23, 2000) (finding confusing similarity where Respondent combined Complainant’s POKEMON and PIKACHU marks to form the <pokemonpikachu.com> domain name); see also G.D. Searle & Co. v. Mahoney, FA 112559 (Nat. Arb. Forum June 12, 2002) (holding the domain name to be confusingly similar where <e-viagra-xenical-celebrex-propecia.com> merely includes the addition of related industry-specific words, namely, the marks of Complainant’s competitors).

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

Rights or Legitimate Interests

Complainant urges that Respondent has no rights to or legitimate interests in the disputed domain name.  Based on Respondent’s failure to respond to the Complainant, it is assumed that Respondent lacks rights and legitimate interests in the disputed domain name. When Complainant asserts a prima facie case against Respondent, the burden shifts to Respondent to show that it has rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (finding that once Complainant asserts that Respondent has no rights or legitimate interests with respect to the domain, the burden shifts to Respondent to provide credible evidence that substantiates its claim of rights and legitimate interests in the domain name); see also Am. Online, Inc. v. AOL Int'l, D2000-0654 (WIPO Aug. 21, 2000) (finding no rights or legitimate interests where Respondent fails to respond).

Furthermore, because Respondent has not submitted a Response, it is appropriate for the Panel to accept all reasonable allegations and inferences in the Complaint as true. See 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.”); see also

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).

Respondent is using the disputed domain name to benefit from Complainant’s goodwill and to intercept Internet traffic intended for Complainant. The use of a confusingly similar domain name to divert Internet users interested in Complainant’s services to a competing website is not a use in connection with 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 N. Coast Med., Inc. v. Allegro Med., FA 95541 (Nat. Arb. Forum Oct. 2, 2000) (finding no rights or legitimate interests in a domain name that diverted Internet users to Respondent’s competing website through the use of Complainant’s mark); see also Ticketmaster Corp. v. DiscoverNet, Inc., D2001-0252 (WIPO Apr. 9, 2001) (finding no rights or legitimate interests where Respondent generated commercial gain by intentionally and misleadingly diverting users away from Complainant's site to a competing website).

Respondent has offered no proof and no evidence in the record suggests that Respondent is commonly known by PIONEER, GROWINGPOINT, PIONEERGROWINGPOINT or by the domain name <pioneergrowingpoint.com>. Therefore Respondent has failed to establish that it has rights to or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Gallup Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that Respondent does not have rights in a domain name when Respondent is not known by the mark); see also Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where Respondent was not commonly known by the mark and never applied for a license or permission from Complainant to use the trademarked name).

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

Registration and Use in Bad Faith

Respondent registered the disputed domain name for its own commercial gain. Respondent’s domain name diverts Internet users who intend to search under Complainant’s marks to a website sponsored by Respondent whereupon Respondent receives monetary compensation. This practice of diversion resulting in commercial gain evidences bad faith registration of and use of a domain name pursuant to Policy ¶ 4(b)(iv). See Drs. Foster & Smith, Inc. v. Lalli, FA 95284 (Nat. Arb. Forum Aug. 21, 2000) (finding bad faith where Respondent directed Internet users seeking Complainant’s site to its own website for commercial gain); see also G.D. Searle & Co. v. Celebrex Drugstore, FA 123933 (Nat. Arb. Forum Nov. 21, 2002) (finding that Respondent registered and used the domain name in bad faith pursuant to Policy ¶ 4(b)(iv) because Respondent was using the confusingly similar domain name to attract Internet users to its commercial website).

Respondent registered the disputed domain name for the primary purpose to disrupt Complainant’s business by diverting internet traffic intended for Complainant to Respondent’s website. Registration of a domain name for the primary purpose of disrupting the business of a competitor is evidence of bad faith registration and use pursuant to Policy ¶ 4 (b)(iii). See S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding Respondent acted in bad faith by attracting Internet users to a website that competes with Complainant’s business); see also Franpin SA v. Paint Tools S.L., D2000-0052 (WIPO May 25, 2000) (finding bad faith where Respondent, a company financially linked to Complainant’s main competitor, registered and used the domain name in question to disrupt Complainant’s business).

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

DECISION

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

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

James A. Carmody, Esq., Panelist

Dated:  March 15, 2004

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