Farmers Group, Inc. v. WebContents, Inc. (www.WebContents.com)
Claim Number: FA1204001438055
Complainant is Farmers Group, Inc. (“Complainant”), represented by Brandon M. Ress of Fulbright & Jaworski L.L.P., Texas, USA. Respondent is WebContents, Inc. (www.WebContents.com) (“Respondent”), Illinois, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <farmers-online.com>, registered with Dotster, Inc.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Houston Putnam Lowry, Chartered Arbitrator, as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on April 4, 2012; the National Arbitration Forum received payment on April 4, 2012.
On April 4, 2012, Dotster, Inc. confirmed by e-mail to the National Arbitration Forum that the <farmers-online.com> domain name is registered with Dotster, Inc. and that Respondent is the current registrant of the name. Dotster, Inc. has verified that Respondent is bound by the Dotster, Inc. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On April 5, 2012, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 25, 2012 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@farmers-online.com. Also on April 5, 2012, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On May 1, 2012, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Houston Putnam Lowry, Chartered Arbitrator, 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" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant is the owner of the distinctive and famous FARMERS trademark and variations thereof incorporating “FARMERS” (the “FARMERS Marks”), including the FARMERS INSURANCE GROUP and FARMERS INSURANCE GROUP OF COMPANIES marks. Complainant commenced use of the FARMERS mark in connection with insurance services at least as early as 1927. Since that time, Complainant and certain of its affiliates (such affiliates hereinafter referred to as the “Farmers Affiliates”) have continuously used the FARMERS Marks and FARMERS name in commerce in the United States. Today, the Farmers Affiliates have over 15 million customers nationwide and offer numerous lines of insurance, including homeowners, automobile, motorcycle, boat, life, and business insurance, as well as numerous financial and insurance-related products and services.
Complainant and the Farmers Affiliates prominently use and promote the FARMERS Marks in advertising, sales, and in various other ways. Complainant’s and the Farmers Affiliates’ sales and advertising expenses under the FARMERS Marks have been extensive and in the tens of millions of dollars annually. As a result, the FARMERS Marks are highly regarded, well-known and widely recognized by consumers, and serve to identify and indicate the source of the Farmers Affiliates’ products and services to the consuming public, as well as to distinguish their products and services from the products and services of others. As a result of Complainant’s and the Farmers Affiliates’ longstanding and extensive use and promotion of the FARMERS Marks, these marks represent considerable goodwill and value to Complainant and the Farmers Affiliates.
The Farmers Affiliates market their products and services under the FARMERS Marks and FARMERS name and through various websites, including “Farmers.com” and “FarmersAgent.com.” Complainant’s independent agents use the “FarmersAgent.com” extension for electronic communications. Complainant registered the domain name “Farmers.com” in 1996 and the domain name “FarmersAgent.com” in 2000.
In addition to its extensive common law rights, Complainant owns numerous U.S. federal registrations for its FARMERS Marks, including U.S. Registration No. 1,821,673 for the mark FARMERS INSURANCE GROUP, which has been registered since 1994. Complainant’s other U.S. registrations include: FARMERS (Reg. No. 1,899,192); FARMERS INSURANCE GROUP SYMBOL OF SUPERIOR SERVICE & Design (Reg. No. 953,862); FARMERS FLEXIBLE UNIVERSAL LIFE (Reg. No. 1,657,608); FARMERS ANNUITY PLUS (Reg. No. 1,659,107); FARMERS INSURANCE GROUP OF COMPANIES (Reg. No. 1,821,672); FARMERS FRIENDLY REVIEW (Reg. No. 1,834,032); AMERICA CAN DEPEND ON FARMERS (Reg. No. 1,837,037); FARMERS INSURANCE EXCHANGE (Reg. No. 1,920,139); FARMERS NEW WORLD LIFE INSURANCE COMPANY (Reg. No. 1,966,130); FARMERS EASYPAY (Reg. No. 2,228,194); FARMERS. GETS YOU BACK WHERE YOU BELONG (Reg. No. 2,345,790); FARMERS EASYPAY DIRECT (Reg. No. 2,532,525); FARMERS FINANCIAL SOLUTIONS (Reg. No. 2,582,990); FARMERS FASTQUOTE (Reg. No. 2,665,732); FARMERS FINANCIAL SERVICES (Reg. No. 2,723,435); UNIVERSITY OF FARMERS (Reg. No. 2,994,359); FARMERS CIRCLE OF DEPENDABILITY (Reg. No. 3,044,980); IFARMERS (Reg. No. 4,016,753); FARMERS NEXT GENERATION (Reg. No. 3,337,085); FARMERS. FOR YOU. (Reg No. 3,499,990); FARMERS LIFE (Reg. No. 3,558,501); FARMERS FLEX (Reg. No. 3,627,616); FARMERS VALUE INSURANCE PACKAGE (Reg. No. 3,686,546); FARMERS VIP (Reg No. 3,502,466; FARMERS BUSINESS INSURANCE EXPRESS (Reg. No. 3,505,986); FARMERS ESSENTIAL LIFE (Reg. No. 3,389,557); FARMERS LIFE INSURANCE COMPANY (Reg. No. 3,627,476); and FARMERS SERVICEPOINT (Reg. No. 3,358,260). These registrations are valid, subsisting and enforceable.
FACTUAL AND LEGAL GROUNDS
This Complaint is based on the following factual and legal grounds: ICANN Rule 3(b)(ix).
[a.] The farmers-online.com domain name is identical to the FARMERS Marks in which Complainant has trademark rights worldwide.
[i] Complainant has rights in its trademarks.
The FARMERS Marks, including the FARMERS INSURANCE GROUP and the FARMERS INSURANCE GROUP OF COMPANIES marks, have been used in commerce in connection with insurance services since at least as early as 1927. In addition, Complainant has registered and uses the domain name farmers.com and farmersinsurance.com in connection with the advertising of its services on the Internet. Complainant first registered the farmers.com domain name in 1996 and has continuously maintained the registration for farmers.com since that time. Complainant first registered the farmersinsurance.com domain name since at least as early as 1996 and has continuously maintained the registration for farmersinsurance.com since that time.
The FARMERS Marks have become a highly valuable asset of Complainant, representing substantial goodwill. The value of this asset has been cultivated as a result of Complainant’s and the Farmers Affiliates’ continuous and exclusive use of the marks for many years, and because of Complainant’s efforts to promote the marks through the expenditure of substantial sums and careful control of the public perception of both the nature and quality of the services provided in connection with the marks.
It is well established under the Policy that Complainant’s registration of a mark with federal authority establishes a prima facie case of Complainant’s rights. See, e.g., Delta Corporate Identity, Inc. and Delta Air Lines, Inc. v. dltaairlines.com and deltaaairlines.com c/o Hanna El Hinn, FA548217 (NAF Oct. 12, 2005), citing Janus Int’l Holding Co. v. Rademacher, D2002-0201 (WIPO Mar. 5, 2002) (“Panel decisions have held that registration of a mark is prima facie evidence of validity, which creates a rebuttable presumption that the mark is inherently distinctive.”), and Innomed Techs., Inc. v. DRP Servs., FA221171 (NAF Feb. 18, 2004) (“Registration of the NASAL-AIRE mark with the USPTO establishes complainant's rights in the mark”).
[ii] The farmers-online.com domain name is identical to the FARMERS Marks.
Complainant has used its FARMERS Marks in commerce since at least 1927. As noted above, such long-standing and continuous use gives Complainant exclusive rights in the FARMERS Marks. ICANN panels have found that, where, as in this case, a domain name incorporates a distinctive mark in its entirety, it creates sufficient similarity between the mark and the domain name to render it confusingly similar. See Lowen Corp. v. Henry Chan, D2004-4030 (WIPO August 5, 2004) (finding that the domain name lowensigns.com is confusingly similar to LOWEN).
Furthermore, the addition of the common or generic term “online” to Complainant’s famous FARMERS trademark does not negate the confusing similarity between farmers-online.com and the FARMERS Marks under Policy ¶4(1)(i). See Exxon Mobil Corporation v. mga enterprises limited, FA0907001273445 (NAF Aug. 26, 2009) (finding that the addition of the terms “travel” and “club,” which have an obvious relationship to Complainant’s [Exxon’s] business, to Complainant’s mark in the disputed domain name <exxontravelclub.com> create a confusing similarity between the disputed domain name and the registered mark); Homer TLC, Inc. v. Whois Guard, FA619597 (NAF Feb. 14, 2006) (finding that the addition of common words to Complainant’s registered mark did not negate the confusing similarity). Moreover, the addition of a generic top-level domain, such as “.com,” is irrelevant in determining similarity of Respondent’s farmers-online.com domain to Complainant’s FARMERS Marks. See, e.g., Delta Corporate Identity, Inc. and Delta Air Lines, Inc, citing Busy Body, Inc. v. Fitness Outlet Inc., D2000-0127 (WIPO Apr. 22, 2000) (“[t]he addition of the generic top-level domain (gTLD) name ‘.com’ is . . . without legal significance since use of a gTLD is required of domain name registrants”); See also, Thomas B. Hudson v. Ted Machi & Associates, FA133759 (NAF Jan. 21, 2003).
In this case, the farmers-online.com domain name is identical to and incorporates in their entirety the FARMERS Marks. The domain name differs from the FARMERS Marks only by the addition of the generic word “online” and the addition of the top-level domain, .com. These minor differences are insufficient to distinguish the farmers-online.com domain name from the FARMERS Marks.
[b.] Respondent Has No Rights or Legitimate Interests in the Domain Name.
Because Complainant has made a prima facie case in support of its allegations, the burden shifts to Respondent to show that it does have rights or legitimate interests in the Domain Name. See, e.g., Tejon Ranchcorp and Tejon Ranch Co. v. J & L Enterprises, FA524749 (NAF September 20, 2005), citing Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (where complainant has asserted that respondent has no rights or legitimate interests with respect to domain name, respondent must come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent.”), and G.D. Searle v. Martin Mktg., FA118277 (NAF Oct. 1, 2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent”).
Moreover, Respondent must show it has rights or legitimate interest in respect of the domain name at issue by “concrete evidence.” See Kate Spade, LLC v. Darmstadter Designs, No. D2001-1384 (WIPO Jan. 3, 2002) citing UDRP Policy 4(c). “Concrete evidence” requires more than personal assertions; it requires documents or third party declarations in support of such assertions. Id. A failure to produce such concrete evidence entitles a panel to conclude that the respondent has no such rights or legitimate interest. Id.
From the evidence discussed below, it is clear that Respondent has no rights or legitimate interest in the farmers-online.com domain name.
[i] Respondent has no relationship with Complainant.
Respondent has no relationship, affiliation, connection, endorsement or association with Complainant. Respondent has never requested or received any authorization, permission or license from Complainant to use the FARMERS Marks in any way.
[ii] Respondent has never been commonly known by the domain name farmers-online.com or by the FARMERS Marks and has never acquired any trademark rights in the same.
There is no evidence in the WHOIS information to suggest that Respondent is known by the farmers-online.com domain name. Indeed, given Complainant’s long-time and extensive world-wide rights in the FARMERS Marks in connection with insurance services, Respondent could not have rights in the FARMERS Marks unless Complainant granted them. However, that has not occurred.
[iii] Respondent has not used the domain name in good faith and in connection with a bona fide offering of goods or services.
Respondent’s use for commercial gain of a domain name that is identical to the FARMERS Marks to direct Internet users interested in Complainant’s services to a directory website providing a listing of hyperlinks to its competitors is not a legitimate noncommercial or fair use of the domain name. See Vapor Blast Mfg. Co. v. R & S Tech., Inc., FA96577 (NAF Feb. 27, 2001) (respondent's commercial use of the domain name to confuse and divert Internet traffic is not a legitimate use of the domain name); see also State Farm Mut. Auto. Ins. Co. v. LaFaive, FA95407 (NAF Sept. 27, 2000) (“[U]nauthorized providing of information and services under a mark owned by a third party cannot be said to be the bona fide offering of goods or services.”) Here, the farmers-online.com domain name directs Internet users to a directory website offering links to competitor’s web sites for related services, as well as numerous sponsored advertisements.
When an Internet searcher reaches the farmers-online.com website and clicks on the links and sponsored ads, he or she is connected immediately to the web site of one of the Farmers Affiliates’ competitors. Upon information and belief, Respondent receives compensation each time a searcher clicks on one of these links, which constitutes use of the domain for commercial gain. Respondent’s use of the farmers-online.com domain name is also commercial because the various companies linked to the web site through these directory listings and sponsored ads benefit from subsequent interest and purchases. ICANN panels have held that there only needs to be commercial gain sought by some party for the use to be commercial. See Focus Do It All Group v. Athanasios Sermbizis, D2000-0923 (WIPO October 6, 2000) (finding that “[I]t is enough that commercial gain is being sought for someone” for a use to be commercial). Respondent’s use cannot be characterized as fair use. See id. (finding that Respondent’s use “could in no way be characterized as fair, because consumers would think that they were visiting a site of the Complainants until they found that instead they were in a directory which would do the Complainants potential harm”).
Respondent’s use of the domain name is not legitimate because it diverts the Farmers Affiliates’ customers and potential customers to Respondent’s website and then to the web sites of the Farmers Affiliates’ competitors. See id. (finding that Respondent’s domain name which linked visitors to a directory of regional competitors was not a legitimate use). See also Homer, TLC Inc. v. Kang, FA573872 (NAF Nov. 22, 2005) (“Respondent’s use of ‘a’ domain name that is identical to Complainant’s mark to divert Internet users to third-party websites for Respondent’s own commercial gain does not constitute a bona fide offering . . . or a legitimate noncommercial or fair use . . . .”). Such use of Complainant’s trademark is clearly confusing and deceptive to consumers. As such, Respondent’s website at farmers-online.com is not used or maintained in good faith and in connection with a bona fide offering of goods or services.
[c.] Respondent Registered and Used the Domain Name in Bad Faith.
There are two pieces of evidence that show Respondent had knowledge of Complainant’s trademark rights, yet proceeded to register and use the farmers-online.com domain name in bad faith: (1) Respondent used Complainant’s trademark in its domain name to divert visitors to Farmers Affiliates’ competitors; and (2) Respondent is deemed to have constructive knowledge of Complainant’s trademark rights at the time Respondent registered and began using the farmers-online.com domain name in light of Complainant’s numerous U.S. and international trademark applications and registrations for the FARMERS Marks.
Respondent is using the farmers-online.com domain name, which is identical to the FARMERS Marks, to direct Internet users to a website with links and sponsored ads that direct visitors to goods and services that compete with the Farmers Affiliates. Such use is concrete evidence of bad faith registration and use. See, e.g., Homer TLC, Inc. v. Unitedeurope Consulting, FA 1110103 (NAF Feb. 8, 2008) (“Respondent’s use of the disputed domain name to advertise links to third-party competitors is evidence of registration and use in bad faith under Policy ¶4(b)(iii)”), and S. Exposure v. S. Exposure, Inc., FA 94864 (NAF July 18, 2000) (finding the respondent acted in bad faith by attracting Internet users to a website that competes with the complainant’s business). Furthermore, it is clear that Respondent registered the disputed domain name with the FARMERS Marks in mind in light of the obvious link between Complainant and the Farmers Affiliates and the goods and services advertised thereon. See MIVA, Inc. v. WhoIs Privacy Inc., citing Pfizer, Inc. v. Suger, D2002-0187 (WIPO Apr. 24, 2002) (because link between complainant’s mark and content advertised on respondent’s website obvious, respondent “must have known about the complainant’s mark when it registered the subject domain name”).
In addition, Respondent is deemed to have constructive knowledge of Complainant’s rights in the FARMERS Marks pursuant to multiple federal U.S. trademark registrations for the FARMERS Marks. “There is a legal presumption of bad faith when [Respondent] reasonably should have been aware of Complainant’s trademarks, actually or constructively.” See Digi Int’l v. DDI Sys., FA124506 (NAF Oct. 24, 2002); see also Thomas B. Hudson v. Ted Machi & Associates, Claim No. FA133759 (NAF Jan., 2003) (“Respondent must be held to be on constructive notice of Complainant’s service mark . . . .”); Assante Holdings, Inc. v. Kevin Baker, Claim No. FA109384 (NAF May 20, 2002) (“Respondent was on notice as to Complainant’s rights in its PERSONAL CFO mark when it registered the disputed domain name because Complainant’s mark is on the Principal Register of the United States Patent and Trademark Office. Registration of the disputed domain name despite this notice is evidence of bad faith registration.”).
Any use by Respondent of the FARMERS Marks, even as a domain name, is an infringement of Complainant’s long-held rights under trademark law. As the panelist in C-Line Products, Inc. v. Ralco Consulting c/o Robert Lebeaux pointedly noted, a potential domain name registrant “would be well-advised to heed the oft-repeated admonition, such as that of Scott W. Pink, in his treatise, The Internet & E-Commerce Legal Handbook (2001), where at page 110, he states: ‘Once you have decided on the TLDs and ccTLDs, you will want to select the second level of the domain, the words that signify your unique address. In doing so, you should first conduct both a domain name search to make sure the particular domain is available as well as a trademark search to make sure your choice of a domain name does not potentially infringe on another person or entity’s trademark rights.” C-Line Products, Inc. v. Ralco Consulting c/o Robert Lebeaux, Claim No. FA187608 (NAF October 20, 2003) (Emphasis supplied).
Respondent knew of Complainant’s rights in the FARMERS Marks. Respondent’s registration and infringing use of the farmers-online.com domain name, despite having such knowledge, indicates bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Based upon the evidence, the Panel finds:
(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.
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."
Paragraph 4(a) of the Policy requires Complainant to prove each of the following three elements to obtain an order cancelling or transferring a domain name:
(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.
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.”).
Complainant presents the Panel with evidence of its trademark registration with the USPTO for its FARMERS mark (e.g., Reg. No. 953,862 registered February 20, 1973). Complainant also argues they have been using this mark in commerce in connection with insurance services since at least 1927. Based on this evidence, the Panel finds Complainant has established sufficient rights in the FARMERS mark pursuant to Policy ¶4(a)(i) through its trademark registrations with the USPTO. See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding that the complainant had established rights in the PENTIUM, CENTRINO and INTEL INSIDE marks by registering the marks with the USPTO); see also Bloomberg L.P. v. Johnston, FA 760084 (Nat. Arb. Forum Oct. 25, 2006) (finding that the complainant had established rights in the BLOOMBERG mark through registration with the United States Patent and Trademark Office).
Complainant argues Respondent’s disputed domain name is identical to Complainant’s FARMERS mark. Complainant argues the disputed domain incorporates Complainant’s distinctive mark in its entirety with the addition of the generic term “online” and the gTLD “.com.” The Panel notes the <farmers-online.com> domain name also contains a hyphen. Based on prior UDRP cases holding such alterations are insufficient to differentiate a disputed domain name from a mark, this Panel holds Respondent’s disputed domain name is confusingly similar to Complainant’s FARMERS mark pursuant to Policy ¶4(a)(i). See Jerry Damson, Inc. v. Tex. Int’l Prop. Assocs., FA 916991 (Nat. Arb. Forum Apr. 10, 2007) (“The mere addition of a generic top-level domain (“gTLD”) “.com” does not serve to adequately distinguish the Domain Name from the mark.”); see also Teradyne, Inc. v. 4Tel Tech., D2000-0026 (WIPO May 9, 2000) (finding that the “addition of a hyphen to the registered mark is an insubstantial change. Both the mark and the domain name would be pronounced in the identical fashion, by eliminating the hyphen"); see also Arthur Guinness Son & Co. (Dublin) Ltd. v. Healy/BOSTH, D2001-0026 (WIPO Mar. 23, 2001) (finding confusing similarity where the domain name in dispute contains the identical mark of the complainant combined with a generic word or term).
The Panel finds Policy ¶4(a)(i) satisfied.
Complainant must first make a prima facie case 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 has rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant argues Respondent has never requested or received any authorization, permission, or license from Complainant to use the FARMERS mark in any way. Because of this, Complainant argues Respondent has no relationship, affiliation, connection, endorsement, or association with Complainant. Complainant further argues the WHOIS information suggests Respondent is not commonly known by the disputed domain name. Respondent does not provide any evidence it is commonly known by the disputed domain name. Based on the evidence submitted, the Panel finds Respondent is not commonly known by the disputed domain names under Policy ¶4(c)(ii). See Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that the respondent was not commonly known by the <lilpunk.com> domain name as there was no evidence in the record showing that the respondent was commonly known by that domain name, including the WHOIS information as well as the complainant’s assertion that it did not authorize or license the respondent’s use of its mark in a domain name); see also Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding no rights or legitimate interests where (1) the respondent is not a licensee of the complainant; (2) the complainant’s prior rights in the domain name precede the respondent’s registration; (3) the respondent is not commonly known by the domain name in question).
Complainant also argues Respondent uses the <farmers-online.com> domain name to resolve to websites providing a listing of hyperlinks to some of Complainant’s competitors. Complainant argues when Internet users click on the hyperlinks they are connected to websites of Complainant’s competitors and Respondent receives a payment for each click. The Panel finds Respondent’s use of the disputed domain name to feature pay-per-click links for competing products and services of third parties does not constitute 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 ALPITOUR S.p.A. v. balata inc, FA 888649 (Nat. Arb. Forum Feb. 27, 2007) (finding that “using the confusingly similar <viaggidea.com> domain name to operate a website that features links to various commercial websites from which Respondent presumably receives referral fees . . . . is neither a bona fide offering of goods or services pursuant to Policy ¶4(c)(i) nor a legitimate non-commercial or fair use pursuant to Policy ¶4(c)(iii).”); see also Yahoo! Inc. v. Web Master, FA 127717 (Nat. Arb. Forum Nov. 27, 2002) (finding that the respondent’s use of a confusingly similar domain name to operate a pay-per-click search engine, in competition with the complainant, was not a bona fide offering of goods or services).
The Panel finds Policy ¶4(a)(ii) satisfied.
Complainant claims Respondent’s <farmers-online.com> domain name resolves to a website with links and sponsored ads that direct visitors to goods and services which directly compete with Complainant. Complainant also claims the displayed links divert Internet users away from Complainant to its competitors, thereby disrupting Complainant’s business. Based on this evidence, the Panel finds Respondent’s use of the disputed domain names to feature pay-per-click links for competing products disrupts Complainant’s business and thus constitutes bad faith registration and use under Policy ¶4(b)(iii). See David Hall Rare Coins v. Tex. Int’l Prop. Assocs., FA 915206 (Nat. Arb. Forum Apr. 9, 2007) (finding that the respondent registered and used the disputed domain name in bad faith pursuant to Policy ¶4(b)(iii) because respondent used the disputed domain name to advertise goods and services of complainant’s competitors, thereby disrupting the complainant’s business); see also Instron Corp. v. Kaner, FA 768859 (Nat. Arb. Forum Sept. 21, 2006) (finding that the respondent registered and used the disputed domain names in bad faith pursuant to Policy ¶4(b)(iii) by using the disputed domain names to operate websites that compete with the complainant’s business).
Complainant also claims Respondent is deemed to have constructive knowledge of Complainant’s rights in the FARMERS mark pursuant to multiple federal U.S. trademark registrations for the FARMERS mark. The Panel is not persuaded by Complainant's arguments concerning constructive knowledge because other panels have held constructive knowledge is not enough evidence of bad faith. See Nat'l Patent Servs. Inc. v. Bean, FA 1071869 (Nat. Arb. Forum Nov. 1, 2007) ("[C]onstructive notice does not support a finding of bad faith registration."); see also The Am. Auto. Assoc., Inc. v. Zag Media Corp., FA 1226952 (Nat. Arb. Forum Nov. 13, 2008) ("Mere constructive knowledge is insufficient to support a finding of bad faith."). Due to the fame of Complainant's mark, Respondent had actual knowledge of the mark and Complainant's rights. Thus, the Panel holds Respondent registered the disputed domain name in bad faith under Policy ¶4(a)(iii). See Yahoo! Inc. v. Butler, FA 744444 (Nat. Arb. Forum Aug. 17, 2006) (finding bad faith where the respondent was "well-aware of the complainant's YAHOO! mark at the time of registration).
The Panel finds Policy ¶4(a)(iii) satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes relief shall be GRANTED.
Accordingly, it is Ordered that the <farmers-online.com> domain name be TRANSFERRED from Respondent to Complainant.
Houston Putnam Lowry, Chartered Arbitrator, Panelist
Dated: Monday, May 7, 2012
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