The Farm
Creative/Productions, Inc. v. Job 1 Systems, Inc.
Claim Number: FA0106000097637
PARTIES
Complainant is The Farm Creative/Productions, Inc., New York, NY (“Complainant”) represented by Russell Smith of Smith Dornan & Shea PC. Respondent is Job 1 Systems, Sunnyvale, CA (“Respondent”).
REGISTRAR AND
DISPUTED DOMAIN NAME
The domain name at issue is <thefarm.com> registered with Network Solutions.
PANEL
On July 10, 2001 pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed James P. Buchele as Panelist. 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.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on June 14, 2001; the Forum received a hard copy of the Complaint on June 11, 2001.
On June 13, 2001, Network Solutions confirmed by e-mail to the Forum that the domain name <thefarm.com> is registered with Network Solutions and that Respondent is the current registrant of the name. Network Solutions has verified that Respondent is bound by the 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 June 14, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of July 5, 2001 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@thefarm.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.
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 the Respondent to the Complainant.
PARTIES’ CONTENTIONS
A. Complainant
The <thefarm.com> domain name is identical to the Complainant's registered service mark.
Respondent does not have any rights or legitimate interests with respect to the <thefarm.com> domain name.
Respondent's registration and use of the <thefarm.com> domain name is in bad faith.
B. Respondent
No Response was received.
FINDINGS
1. Complainant is a New York corporation involved in the entertainment and television production industry, specifically involving computers and the Internet.
2. Since 1992, Complainant has been using its mark in national commerce.
3. On January 31, 1995, Complainant obtained registration of the "THE FARM" Service Mark on the Principal Register of the United States Patent and Trademark Office as Registration No. 1,877,010.
4. Complainant's mark is used for interactive media presentations with a wide range of technology-savvy clients.
5. Respondent is engaged in business in a field that overlaps with Complainant's business activities.
6. Respondent registered the <thefarm.com> domain name on August 11, 1994.
7. Respondent has made no use of 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 the Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules.
Paragraph 4(a) of the Policy requires that the 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 the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(2) the 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 <thefarm.com> domain name is plainly identical to the Complainant's registered Service Mark. It is well settled that the use of a mark in its entirety, with the only difference being the deletion of spaces between the words, is de minimis for the purposes of determining whether a disputed domain name is identical or confusingly similar. See The Fed’n of Gay Games, Inc. v. Hodgson & Scanlon, D2000-0432 (WIPO June 28, 2000) (finding that the domain name <gaygames.com> is identical to Complainant's registered trademark GAY GAMES); see also The Prudential Ins. Co. of Am. v. Irvine, FA 95768 (Nat. Arb. Forum Nov. 6, 2000) (finding that the domain name is identical to Complainant’s PRUDENTIAL ONLINE trademark…also the root of the domain name, namely the word "Prudential," is identical to Complainant’s mark…thus, the domain name in its entirety is confusingly similar to the Complainant’s family of marks).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Rights or
Legitimate Interests
Respondent has not come forward to demonstrate it has rights or legitimate interests in the <thefarm.com> domain name. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (failure to respond allows all reasonable inferences of fact in the allegations of Complainant to be deemed true). See Woolworths plc. v. Anderson, D2000-1113 (WIPO Oct. 10, 2000) (finding that absent evidence of preparation to use the domain name for a legitimate purpose, the burden of proof lies with the Respondent to demonstrate that it has rights or legitimate interests).
Additionally, there is a presumption that the Respondent has no rights or legitimate interests with respect to a disputed domain name where the Respondent fails to respond. Parfums Christian Dior v. QTR Corp., D2000-0023 (WIPO Mar. 9, 2000) (finding that by not submitting a response, the Respondent has failed to invoke any circumstance which could demonstrate any rights or legitimate interests in the domain name).
The <thefarm.com> domain is not being used at all and therefore is not being used in connection with a bona fide offering of goods pursuant to Policy ¶ 4(c)(i). See J. Paul Getty Trust v. Domain 4 Sale & Co., FA 95262 (Nat. Arb. Forum Sept. 7, 2000) (finding rights or legitimate interests do not exist when one has made no use of the websites that are located at the domain names at issue, other than to sell the domain names for profit); see also Wal-Mart Stores, Inc. v. Stork, D2000-0628 (WIPO Aug. 11, 2000) (finding Respondent’s conduct purporting to sell domain name suggests it has no legitimate use).
There is no evidence in the record, nor has Respondent come forward to establish, that it is making a legitimate noncommercial or fair use of the domain name. Furthermore, passive holding of a domain name can be evidence of no legitimate interests. See Bloomberg L.P. v. Sandhu, FA 96261 (Feb. 12, 2001) (finding that no rights or legitimate interest can be found when Respondent fails to use disputed domain names in any way); see also Flor-Jon Films, Inc. v. Larson, FA 94974 (Nat. Arb. Forum July 25, 2000) (finding that Respondent’s failure to develop the site demonstrates a lack of legitimate interest in the domain name).
Accordingly, Respondent has no rights or legitimate interests in the <thefarm.com> domain name. The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Registration and
Use in Bad Faith
As has already been found, Respondent has failed to use the <thefarm.com> domain name in any manner since it registered the domain name beyond offering it for sale. There is ample authority that passive holding of a domain name that infringes on another's registered mark constitutes bad faith pursuant to Policy ¶ 4(a)(iii). See, e.g., E. & J. Gallo Winery v. Oak Inv. Group, D2000-1213 (WIPO Nov. 12, 2000) (finding bad faith where (1) Respondent knew or should have known of the Complainant’s famous GALLO marks and (2) Respondent made no use of the domain name "winegallo.com"); see also Hewlett-Packard Co. v. Martineau, FA 95359 (Nat. Arb. Forum Aug. 30, 2000) (finding that the Respondent’s failure to submit an assertion of good faith intent to use the domain name, in addition to the passive holding of the domain name, reveal that the Respondent registered and uses the domain name in bad faith); Mondich & Am. Vintage Wine Biscuits, Inc. v. Brown, D2000-0004 (WIPO Feb. 16, 2000) (holding that the Respondent’s failure to develop its website in a two year period raises the inference of registration in bad faith).
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
DECISION
Having established all three of the elements under the ICANN Policy, the Panel concludes that the requested relief should be hereby granted.
Accordingly, it is ordered that the <thefarm.com> domain name be transferred from Respondent to Complainant.
James P. Buchele, Panelist
Dated: July 24, 2001
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page