Pioneerseedco.com + 3 more domains

The timeline behind pioneerseedco.com

Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.

How each disputed name was decided in this proceeding.

Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.

NATIONAL ARBITRATION FORUM DECISION Pioneer Hi-Bred International Inc. v. Ian Johnston Claim Number: FA0809001223949 PARTIES Complainant is Pioneer Hi-Bred International Inc. (“Complainant”), represented by Mark Sommers, of Finnegan Henderson Farabow Garrett & Dunner L.L.P., Washington D.C., USA. Respondent is Ian Johnston (“Respondent”), Missouri, USA. REGISTRAR AND DISPUTED DOMAIN NAMES The domain names at issue are <pioneerseedco.com>, <pioneerseedco.net>, <pioneerseedco.info> and <pioneerseedco.org>, registered with Godaddy.com, 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. Bruce E. Meyerson as Panelist. PROCEDURAL HISTORY Complainant submitted a Complaint to the National Arbitration Forum electronically on September 10, 2008; the National Arbitration Forum received a hard copy of the Complaint on September 11, 2008. On September 11, 2008, Godaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <pioneerseedco.com>, <pioneerseedco.net>, <pioneerseedco.info> and <pioneerseedco.org> domain names are registered with Godaddy.com, Inc. and that Respondent is the current registrant of the names. Godaddy.com, Inc. has verified that Respondent is bound by the Godaddy.com, 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 September 22, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of October 13, 2008 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@pioneerseedco.com, postmaster@pioneerseedco.net, postmaster@pioneerseedco.info and postmaster@pioneerseedco.org by e-mail. Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default. On October 20, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Bruce E. Meyerson as Panelist. Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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 National Arbitration 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 names be transferred from Respondent to Complainant. PARTIES' CONTENTIONS A. Complainant makes the following assertions: 1. Respondent’s <pioneerseedco.com>, <pioneerseedco.net>, <pioneerseedco.info> and <pioneerseedco.org> domain names are confusingly similar to Complainant’s PIONEER mark. 2. Respondent does not have any rights or legitimate interests in the <pioneerseedco.com>, <pioneerseedco.net>, <pioneerseedco.info> and <pioneerseedco.org> domain names. 3. Respondent registered and used the <pioneerseedco.com>, <pioneerseedco.net>, <pioneerseedco.info> and <pioneerseedco.org> domain names 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 agriculture industry. It is the largest agricultural seed company in the world and works in the forefront of the field of plant genetics and hybrids. Complainant operates ninety research locations across the world and conducts its business in nearly seventy countries. Complainant has also registered the PIONEER mark in numerous jurisdictions, including with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 84,443 issued December 12, 1911) for seeds and related agricultural services. Respondent’s <pioneerseedco.com>, <pioneerseedco.net>, <pioneerseedco.info> and <pioneerseedco.org> domain names were each registered on February 25, 2008. Each disputed domain name resolves to a pay-per-click website containing links to various unrelated third-parties. 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. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint 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.”). 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 The Panel finds that Complainant has sufficiently established rights in the PIONEER mark through registration with the USPTO pursuant to Policy ¶ 4(a)(i). See ESPN, Inc. v. MySportCenter.com, FA 95326 (Nat. Arb. Forum Sept. 5, 2000) (concluding that the complainant demonstrated its rights in the SPORTSCENTER mark through its valid trademark registrations with the USPTO and similar offices around the world); see also VICORP Rests., Inc. v. Triantafillos, FA 485933 (Nat. Arb. Forum July 14, 2005) (“Complainant has established rights in the BAKERS SQUARE mark by registering it with the United States Patent and Trademark Office (“USPTO”).”). Each of the <pioneerseedco.com>, <pioneerseedco.net>, <pioneerseedco.info> and <pioneerseedco.org> domain names contain Complainant’s PIONEER mark in its entirety followed by the generic and descriptive term “seed” and the abbreviation “co,” which stands for the generic term “company.” The use of the descriptive terms “seed” and “company” do not adequately distinguish the disputed domain names because these terms describe the business in which Complainant engages under the PIONEER mark. See Space Imaging LLC v. Brownell, AF-0298 (eResolution Sept. 22, 2000) (finding confusing similarity where the respondent’s domain name combines the complainant’s mark with a generic term that has an obvious relationship to the complainant’s business); see also Whitney Nat’l Bank v. Easynet Ltd, FA 944330 (Nat. Arb. Forum Apr. 30, 2007) (“The additions of generic words with an obvious relationship to Complainant’s business and a gTLD renders the disputed domain name confusingly similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i).”). Additionally, each disputed domain name includes the generic top-level domain (“gTLD”) “.com,” “.net,” “.info,” or “.org.” However, the incorporation of a gTLD is irrelevant to a Policy ¶ 4(a)(i) analysis. See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (concluding that the addition of a gTLD, whether it be “.com,” “.net,” “.biz,” or “.org,” is irrelevant to a Policy ¶ 4(a)(i) analysis). For all of these reasons, the Panel finds that each of the <pioneerseedco.com>, <pioneerseedco.net>, <pioneerseedco.info> and <pioneerseedco.org> domain names is confusingly similar to Complainant’s PIONEER mark pursuant to Policy ¶ 4(a)(i). The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(i). Rights or Legitimate Interests A Policy ¶ 4(a)(ii) analysis begins by examining the Complaint to see if Complainant has established a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain names. The Panel determines that Complainant has met this threshold, and the burden is accordingly shifted to Respondent to prove that it does have rights or legitimate interests in the disputed domain names. See Towmaster, Inc. v. Hale, FA 973506 (Nat. Arb. Forum June 4, 2007) (“Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests.”); see also Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Nat. Arb. Forum Feb. 13, 2007) (finding that once a prima facie case has been established by the complainant under Policy ¶ 4(c), the burden then shifts to the respondent to demonstrate its rights or legitimate interests in the disputed domain name). However, Respondent has failed to submit a reply to the Complaint. Therefore, the Panel may presume that Respondent lacks all rights and legitimate interests in the disputed domain names unless such a presumption is clearly contradicted by the evidence. Consequently, the Panel will proceed to examine the record in consideration of the elements listed under Policy ¶ 4(c). See Canadian Imperial Bank of Commerce v. D3M Virtual Reality Inc., AF-0336 (eResolution Sept. 23, 2000) (finding no rights or legitimate interests where no such right or interest was immediately apparent to the panel and the respondent did not come forward to suggest any right or interest it may have possessed); see also Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that the complainant’s allegations are true unless clearly contradicted by the evidence). Complainant contends that Respondent is not and has not been commonly known by any of the disputed domain names. The WHOIS information for each disputed domain name identifies Respondent as “Ian Johnston.” Without any additional information in the record, the Panel must find that Respondent is not commonly known by any of the disputed domain names pursuant to Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name); see also St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (concluding a respondent has no rights or legitimate interests in a disputed domain name where there is no evidence in the record indicating that the respondent is commonly known by the disputed domain name). Each of the disputed domain names resolves to what is presumably a “pay-per-click” website. This website displays a series of links to unrelated third-parties. The Panel finds that without further evidence, a “pay-per-click” website does not constitute 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 Disney Enters., Inc. v. Kamble, FA 918556 (Nat. Arb. Forum Mar. 27, 2007) (holding that the operation of a pay-per-click website at a confusingly similar domain name was not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)); see also Constellation Wines U.S., Inc. v. Tex. Int’l Prop. Assocs., FA 948436 (Nat. Arb. Forum May 8, 2007) (finding that the respondent had no rights or legitimate interests under Policy ¶¶ 4(c)(i) or 4(c)(iii) by using the disputed domain name to operate a website featuring links to goods and services unrelated to the complainant). The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(ii). Registration and Use in Bad Faith Complainant contends that Respondent’s registration and use of the <pioneerseedco.com>, <pioneerseedco.net>, <pioneerseedco.info> and <pioneerseedco.org> domain names demonstrates a pattern of registering infringing domain names. A single registration of four domain names containing a complainant’s mark in its entirety may constitute bad faith. In the circumstances of this case, Respondent registered and is using four disputed domain names that are each identical but for their gTLD. The Panel determines that this constitutes evidence that Respondent registered and is using the disputed domain names in bad faith pursuant to Policy ¶ 4(b)(ii). See Harcourt, Inc. v. Fadness, FA 95247 (Nat. Arb. Forum Sept. 8, 2000) (finding that one instance of registration of several infringing domain names satisfies the burden imposed by the Policy ¶ 4(b)(ii)); see also EPA European Pressphoto Agency B.V. v. Wilson, D2004-1012 (WIPO Feb. 9, 2005) (finding that the respondent’s registration of the <epa-photo.com>, <epaphoto.com> and <epaphotos.com> domain names was sufficient to constitute a pattern pursuant to Policy ¶ 4(b)(ii)). Moreover, each of the disputed domain names resolves to the same “pay-per-click” website. This website contains a series of links to unrelated third-parties. It is presumed that these links financially benefit Respondent through some type of a referral fee scheme. Consequently, the Panel finds this to be further evidence of Respondent’s registration and use of the <pioneerseedco.com>, <pioneerseedco.net>, <pioneerseedco.info> and <pioneerseedco.org> domain names in bad faith pursuant to Policy ¶ 4(b)(iv). See Association of Junior Leagues Int’l Inc. v. This Domain Name My Be For Sale, FA 857581 (Nat. Arb. Forum Jan. 4, 2007) (holding that the respondent’s use of the disputed domain name to maintain a pay-per-click site displaying links unrelated to the complainant and to generate click-through revenue suggested bad faith registration and use under Policy ¶ 4(b)(iv)); see also Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003) (“Respondent's prior use of the <mailonsunday.com> domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv) because the domain name provided links to Complainant's competitors and Respondent presumably commercially benefited from the misleading domain name by receiving ‘click-through-fees.’”). The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(iii). 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 <pioneerseedco.com>, <pioneerseedco.net>, <pioneerseedco.info> and <pioneerseedco.org> domain names be TRANSFERRED from Respondent to Complainant. Bruce E. Meyerson, Panelist Dated: October 27, 2008 Click Here to return to the main Domain Decisions Page. Click Here to return to our Home Page NATIONAL ARBITRATION FORUM

Source of record: FORUM . Reproduced for research; FORUM is the authoritative source.