Kingranchcigars.com, Kingranchcigars.net

The timeline behind kingranchcigars.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 King Ranch, Inc. and King Ranch IP, LLC v. Alvio Dominguez Claim Number: FA0907001272858 PARTIES Complainant is King Ranch, Inc. and King Ranch IP, LLC (“Complainant”), represented by Paul C. Van Slyke, of Locke Lord Bissell & Liddell LLP, Texas, USA. Respondent is Alvio Dominguez (“Respondent”), Florida, USA. REGISTRAR AND DISPUTED DOMAIN NAMES The domain names at issue are <kingranchcigars.com> and <kingranchcigars.net>, 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. The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist. PROCEDURAL HISTORY Complainant submitted a Complaint to the National Arbitration Forum electronically on July 8, 2009; the National Arbitration Forum received a hard copy of the Complaint on July 9, 2009. On July 9, 2009, Godaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <kingranchcigars.com> and <kingranchcigars.net> 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 July 21, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of August 10, 2009 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@kingranchcigars.com and postmaster@kingranchcigars.net by e-mail. Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default. On August 13, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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 <kingranchcigars.com> and <kingranchcigars.net> domain names are confusingly similar to Complainant’s KING RANCH mark. 2. Respondent does not have any rights or legitimate interests in the <kingranchcigars.com> and <kingranchcigars.net> domain names. 3. Respondent registered and used the <kingranchcigars.com> and <kingranchcigars.net> domain names in bad faith. B. Respondent failed to submit a Response in this proceeding. FINDINGS Complainant, King Ranch, Inc. and King Ranch IP, LLC, has operated the famous Texas ranch known as King Ranch since 1853. Complainant’s retail segment of its business began in the late 1860s and since that time products, such as cigar accessories, have been sold under the KING RANCH mark. Complainant holds numerous registrations of its KING RANCH mark with the United States Patent and Trademark Office (“USPTO”) (i.e., Reg. No. 2,351,707 issued May 23, 2000). Respondent registered both of the <kingranchcigars.com> and <kingranchcigars.net> domain names on December 16, 2007. The <kingranchcigars.com> domain name resolves to a website that promotes a cigar business that directly competes with Complainant’s business. The <kingranchcigars.net> domain name resolves to a website that displays several hyperlinks to various third-party websites, which are unrelated to Complainant. 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 Complainant has submitted nineteen registrations of the KING RANCH mark that are held with the USPTO. The Panel finds that these registrations constitute a sufficient showing of rights in the KING RANCH mark under Policy ¶ 4(a)(i). See Miller Brewing Co. v. Miller Family, FA 104177 (Nat. Arb. Forum Apr. 15, 2002) (finding that the complainant had established rights to the MILLER TIME mark through its federal trademark registrations); see also Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (finding that a trademark registration adequately demonstrates a complainant’s rights in a mark under Policy ¶ 4(a)(i)). The only differences between the <kingranchcigars.com> and <kingranchcigars.net> domain names and Complainant’s KING RANCH mark are that: (1) the disputed domain names delete the space within Complainant’s mark; (2) the disputed domains both add the descriptive term “cigars,” which describes some of Complainant’s products; and (3) the disputed domain names add either the generic top-level domain (“gTLD”) “.com” or “.net.” The Panel finds that none of these differences between the disputed domain names and Complainant’s mark sufficiently distinguish the disputed domain names from Complainant’s mark. Therefore, the Panel finds that the <kingranchcigars.com> and <kingranchcigars.net> domain names are confusingly similar to Complainant’s KING RANCH mark under Policy ¶ 4(a)(i). See Bond & Co. Jewelers, Inc. v. Tex. Int’l Prop. Assocs., FA 937650 (Nat. Arb. Forum Apr. 30, 2007) (finding that the elimination of spaces between terms and the addition of a gTLD do not establish distinctiveness from the complainant’s mark under Policy ¶ 4(a)(i)); see also Gillette Co. v. RFK Assocs., FA 492867 (Nat. Arb. Forum July 28, 2005) (finding that the additions of the term “batteries,” which described the complainant’s products, and the generic top-level domain “.com” were insufficient to distinguish the respondent’s <duracellbatteries.com> from the complainant’s DURACELL mark); see also 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). The Panel finds that Policy ¶ 4(a)(i) has been satisfied. Rights or Legitimate Interests In the beginning, Complainant must make a prima facie showing that Respondent lacks rights and legitimate interests in the disputed domain names. The Panel finds that Complainant has sufficiently made its prima facie showing under Policy ¶ 4(a)(ii). The burden then shifts to Respondent and Respondent must establish that it has rights or legitimate interests in the disputed domain names. See Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“Proving that the Respondent has no rights or legitimate interests in respect of the Domain Name requires the Complainant to prove a negative. For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”); see also G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent. Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”). The WHOIS information lists “Alvio Dominguez” as the registrant for both of the <kingranchcigars.com> and <kingranchcigars.net> domain names. Accordingly, the Panel finds that Respondent is not commonly known by either of the disputed domain names under Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also 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). Respondent registered the <kingranchcigars.com> and <kingranchcigars.net> domain names on December 16, 2007 and since that time has used the <kingranchcigars.com> domain name to promote a competing business website. The Panel finds that this use of this disputed domain name constitutes neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Gardens Alive, Inc. v. D&S Linx, FA 203126 (Nat. Arb. Forum Nov. 20, 2003) (finding that the respondent used a domain name for commercial benefit by diverting Internet users to a website that sold goods and services similar to those offered by the complainant and thus, was not using the name in connection with a bona fide offering of goods or services nor a legitimate noncommercial or fair use); see also Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (“Respondent’s appropriation of [Complainant’s] SAFLOK mark to market products that compete with Complainant’s goods does not constitute a bona fide offering of goods and services.”). Respondent has used the <kingranchcigars.net> domain name for a website that features hyperlinks to unrelated third-party websites. The Panel infers that Respondent receives click-through fees from this use. The Panel finds that this use of this disputed domain name is 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 Vance Int’l, Inc. v. Abend, FA 970871 (Nat. Arb. Forum June 8, 2007) (concluding that the operation of a pay-per-click website at a confusingly similar domain name does not represent a bona fide offering of goods or services or a legitimate noncommercial or fair use, regardless of whether or not the links resolve to competing or unrelated websites or if the respondent is itself commercially profiting from the click-through fees); see also 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)). The Panel finds that Policy ¶ 4(a)(ii) has been satisfied. Registration and Use in Bad Faith The Panel finds that Respondent’s use of the <kingranchcigars.com> domain name to promote a competing business disrupts Complainant’s business. The Panel further finds that such a disruption consitutes bad faith registration and use under Policy ¶ 4(b)(iii). See Spark Networks PLC v. Houlihan, FA 653476 (Nat. Arb. Forum Apr. 18, 2006) (holding that the respondent’s registration of a domain name substantially similar to the complainant’s AMERICAN SINGLES mark in order to operate a competing online dating website supported a finding that respondent registered and used the domain name to disrupt the complainant’s business under Policy ¶ 4(b)(iii)); see also Classic Metal Roofs, LLC v. Interlock Indus., Ltd., FA 724554 (Nat. Arb. Forum Aug. 1, 2006) (finding that the respondent registered and used the <classicmetalroofing.com> domain name in bad faith pursuant to Policy ¶ 4(b)(iii) by redirecting Internet users to the respondent’s competing website). Furthermore, the Panel finds that Respondent’s competing use of the <kingranchcigars.com> domain name to promote a competing business website constitutes bad faith registration and use under Policy ¶ 4(b)(iv) because Respondent’s use of the confusingly similar disputed domain name creates a likelihood of confusion as to Complainant’s affiliation with the <kingranchcigars.com> domain name. See Velv, LLC v. AAE, FA 677922 (Nat. Arb. Forum May 25, 2006) (finding that the respondent’s use of the <arizonashuttle.net> domain name, which contained the complainant’s ARIZONA SHUTTLE mark, to attract Internet traffic to the respondent’s website offering competing travel services violated Policy ¶ 4(b)(iv)); see also Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting). The <kingranchcigars.net> domain name resolves to a website that displays hyperlinks to unrelated third-party websites, from which the Panel presumes that Respondent receives click-through fees. Accordingly, the Panel finds that this use of the <kingranchcigars.net> domain name by Respondent constitutes bad faith registration and use under Policy ¶ 4(b)(iv). See Ass’n 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 Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (holding that the respondent was taking advantage of the confusing similarity between the <lilpunk.com> domain name and the complainant’s LIL PUNK mark by using the contested domain name to maintain a website with various links to third-party websites unrelated to Complainant, and that such use for the respondent’s own commercial gain demonstrated bad faith registration and use pursuant to Policy ¶ 4(b)(iv)). 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 <kingranchcigars.com> and < kingranchcigars.net> domain names be TRANSFERRED from Respondent to Complainant. The Honorable Charles K. McCotter, Jr. (Ret.), Panelist Dated: August 27, 2009 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.