_______________________________________________

INDIANA MULCH AND STONE, L.L.C.

COMPLAINANT

VS

KEITH'S FARM MARKET

RESPONDENT

DECISION

Forum File FA0002000093676

_______________________________________________

This is a DOMAIN NAME dispute between the parties (hereafter Indiana Mulch and Keith's Farm) and will be decided on the record provided by Complainant, Indiana Mulch, represented by Spiro Bereveskos and Charles J. Meyer, Woodard Emhardt Naughton Moriarity & McNett, Indianapolis, IN; Keith's Farm filed a response which was not filed timely and will not be considered here. Keith's Farm Market is not represented by counsel.

ISSUE

The Domain Names at issue, registered with Network Solutions, Inc., which are the subject of this Complaint, are as follows: Indianamulch.com and Indymulch.com. These names were registered June 3, 1999 by Keith's Farm Market. Complainant desires to have these domain names transferred to it.

SUMMARY OF EVIDENCE

Indiana Mulch manufactures and sells mulch and related products in Indiana and throughout the Midwest. They have been using the names Indiana Mulch and Stone and Indiana Mulch; it is sometimes referred to as Indy Mulch. They believe they have developed a common law trademark and trade name recognition for these names as they have been using them for thirteen or more years.

Keith's Farm is a competitor of Indiana Mulch and manufactures and sells related products. At one time Keith's Farm contacted Indiana Mulch with an offer to supply materials to Indiana Mulch, but Indiana Mulch declined the offer.

According to Complainant's Ex. C, Keith's Farm has registered various domain names, including those listed at Complainant's Ex. C. Complainant reports that these names are those of Respondent's competitors. Keith's Farm Market offered to sell both domain names at issue to Indiana Mulch & Stone for $50,000.

Complainant believes that when visitors to the Indianamulch.com and/or Indymulch.com web sites get information on mulch products, they believe there is a relationship between the company Indiana Mulch & Stone and Keith's Farm Market when there is none.

Complainant states that Keith's Farm, prior to registering these domain names, had never referred to itself as either; moreover, Keith's Farm had actual knowledge of the existence of Complainant and its trade name. Complainant believes that Keith's Farm has registered the domain names in order to prevent Indiana Mulch and Stone from using them and is engaging in a pattern of registering names of its various competitors for the purpose of disrupting the business of these competitors. Complainant also alleges that Keith's Farm has intentionally attempted to attract Internet users to these two web sites and believes that much confusion has been created.

Respondent's filing date was March 4, 2000; the only documentation submitted was a statement from a Tim LeGrand dated March 6, 2000, which makes it untimely.

DISCUSSION

No one would deny that "mulch" is a generic or common dictionary word, but mulch is not at issue here; Indiana and Indy are also not at issue. What is at issue are the domain names Indianamulch.com and Indymulch.com.

Complainant, Indiana Mulch, states they have established a reputation for quality and service over a thirteen year period and that this website of Indianamulch.com directs business to the Respondent which is confusing to potential customers relying on the established reputation of the Indiana Mulch Company.

Certainly the registered domain names are confusingly similar to Indiana Mulch's trademarks and trade names. There is no question that this disrupts its business and/or suggests a relationship to Indiana Mulch.

The question here centers on "bad faith". That Keith's Farm offered to sell the domain names to Indiana Mulch may not in itself constitute bad faith, but when the record shows that Keith's Farm Market also registered the trade names of his other local competitors it indicates a pattern of bad faith..

FINDINGS OF FACT

1. Complainant does business under the name of Indiana Mulch and Stone and/or

Indiana Mulch and is sometimes referred to as Indy Mulch. One of their several products is to provide mulch.

2. They have been in business in the Indianapolis, Indiana area for over thirteen years and have established a reputation for quality and service.

3. Keith's Farm Market is also located in the Indianapolis, Indiana area and likewise

supplies mulch to customers. Complainant and Respondent are competitors.

4. Keith's Farm Market has registered many domain names including Indianamulch.com and Indymulch.com as well as the trade names of his other competitors in the Indianapolis area.

5. Keith's Farm Market has registered these many names and specifically Indianamulch.com and Indymulch.com in order to divert business to itself, to attract Internet users to its web site by creating the likelihood of confusion which constitutes bad faith.

DECISION
(see amendment attached)

It is the decision of the undersigned that the disputed Domain Names, to wit: Indianamulch.com and Indy.com, shall be transferred to the Complainant, Indiana Mulch & Stone.

Marilyn W. Carney, Arbitrator

I certify that I have no known conflict of interest to serve as Arbitrator in this case.

Marilyn W. Carney

Senior U. S. Judge, Retired

THE NATIONAL ARBITRATION FORUM
MINNEAPOLIS, MINNESOTA

AMENDMENT TO DECISION

Forum File FA0002000093676

INDIANA MULCH AND STONE L.L.C.

COMPLAINANT

VS

KEITH'S FARM MARKET

RESPONDENT

This is an Amendment to the Domain Name Decision between the parties. The Decisional paragraph on the last page of the decision inadvertently omitted part of one of the disputed Domain Names. It should read as follows:

DECISION

It is the decision of the undersigned that the disputed Domain Names, to wit: Indianamulch.com and Indymulch.com shall be transferred to the Complainant, Indiana Mulch & Stone.

Marilyn W. Carney
Arbitrator

March 25, 2000