King Ranch IP, LLC v. Michael Guill
Claim Number: FA1904001838058
Complainant is King Ranch IP, LLC (“Complainant”), represented by Christopher Weimer of Norton Rose Fulbright US LLP, USA. Respondent is Michael Guill (“Respondent”), USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <kingranchcannabis.com>, registered with Godaddy.Com, LLC.
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.
Steven M. Levy, Esq. as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 9, 2019; the Forum received payment on April 9, 2019.
On April 10, 2019, Godaddy.Com, LLC confirmed by e-mail to the Forum that the <kingranchcannabis.com> domain name is registered with Godaddy.Com, Llc and that Respondent is the current registrant of the name. Godaddy.Com, Llc has verified that Respondent is bound by the Godaddy.Com, Llc 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 12, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 2, 2019 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@kingranchcannabis.com. Also on April 12, 2019, 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 Forum transmitted to the parties a Notification of Respondent Default.
On May 3, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Steven M. Levy, Esq. as Panelist.
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" 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 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, King Ranch IP, LLC, uses it trademark KING RANCH in connection with various agricultural goods and services including turfgrass, sod, citrus, sugar cane, rice, and sweet corn. The mark is also used in connection with related merchandise and licensed products including cigar holders, Ford trucks, and Beretta firearms. Complainant has rights in the KING RANCH mark based on its longstanding use dating back to 1853 and its registration with the United States Patent and Trademark Office (“USPTO”) dating back to 2002. Respondent’s <kingranchcannabis.com> domain name, created on December 31, 2018, is confusingly similar to Complainant’s KING RANCH mark, as it incorporates the mark in its entirety, merely adding the generic term “cannabis” and the generic top-level domain (“gTLD”) “.com.”
Respondent has no rights or legitimate interests in the <kingranchcannabis.com> domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized Respondent to use the KING RANCH mark in any manner. Respondent’s use of the disputed domain name does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, the disputed domain name resolves to a parked web page displaying monetized pay-per-click links.
Respondent registered and is using the <kingranchcannabis.com> domain name in bad faith. Respondent disrupts Complainant’s business by combining Complainant’s mark and the word “cannabis”, leading consumers to believe that Complainant is offering cannabis related products. Given Complainant’s longstanding agricultural activities, these additions serve only to increase the likelihood of confusion with its mark. Respondent’s bad faith is further demonstrated by its passive holding of the disputed domain name and its awareness of Complainant’s rights in the KING RANCH mark prior to registering the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a trademark in which Complainant has rights;
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the disputed domain name was registered and is being used by Respondent 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 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.
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(f), 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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
Complainant claims rights in the KING RANCH trademark based upon longstanding use in commerce as well as registration of the mark with the USPTO. Registration of a mark with the USPTO is sufficient to establish rights in that mark. See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).”) The Panel therefore holds that Complainant’s registration of the KING RANCH trademark with the USPTO is sufficient to establish rights in the mark under Policy ¶ 4a(a)(i).
Complainant next argues that Respondent’s <kingranchcannabis.com> domain name is confusingly similar to the KING RANCH mark as it incorporates the mark in its entirety, merely adding the generic term “cannabis” and the gTLD “.com.” The addition of generic terms and/or a gTLD is not sufficient to overcome a confusingly similar analysis per Policy ¶ 4(a)(i). See MTD Products Inc. v. J Randall Shank, FA 1783050 (Forum June 27, 2018) (“The disputed domain name is confusingly similar to Complainant’s mark as it wholly incorporates the CUB CADET mark before appending the generic terms ‘genuine’ and ‘parts’ as well as the ‘.com’ gTLD.”). Here, Respondent added the generic term “cannabis” as well as the gTLD “.com” to Complainant’s mark when registering the disputed domain name. The Panel thus finds that the disputed domain name is confusingly similar to Complainant’s KING RANCH mark per Policy ¶ 4(a)(i).
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). Should it succeed in this effort, the burden then shifts to Respondent to show that it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
Complainant argues that Respondent has no rights or legitimate interests in the <kingranchcannabis.com> domain name as Respondent is not commonly known by the disputed domain name nor has Complainant authorized Respondent to use the KING RANCH mark in any way. Where a response is lacking, WHOIS information can support a finding that the respondent is not commonly known by the disputed domain name. See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name). Additionally, lack of authorization from a complainant to use its mark may be evidence that the respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii). See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”). The WHOIS information of record identifies the owner of the disputed domain name as “Michael Guill” and no information on record indicates that Respondent is known otherwise or is authorized to make any use of Complainant’s mark. The Panel therefore finds, under Policy ¶ 4(c)(ii), that Respondent has not been commonly known by the <kingranchcannabis.com> domain name.
Complainant further argues that Respondent’s lack of rights and legitimate interests in the <kingranchcannabis.com> domain name is demonstrated by its failure to use the name to make a bona fide offering of goods and services or for a legitimate or noncommercial or fair use. Complainant instead contends that the name resolves to a parked website. Passive holding of a disputed domain name is not a use indicative of rights or legitimate interests per Policy ¶¶ 4(c)(i) or (iii). See Dell Inc. v. link growth / Digital Marketing, FA 1785283 (Forum June 7, 2018) (“Respondent’s domain names currently display template websites lacking any substantive content. The Panel finds that Respondent has does not have rights or legitimate interests with respect of the domain name per Policy ¶¶ 4(c)(i) or (iii).”) Furthermore, using a confusingly similar domain name to divert Internet users from a complainant’s site to the respondent’s pay-per-click website for commercial benefit is also not a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Ashley Furniture Industries, Inc. v. domain admin / private registrations aktien gesellschaft, FA 1506001626253 (Forum July 29, 2015) (“Respondent is using the disputed domain name to resolve to a web page containing advertising links to products that compete with those of Complainant. The Panel finds that this does not constitute a bona fide offering or a legitimate noncommercial or fair use.”); see also Summit Group, LLC v. LSO, Ltd., FA 758981 (Forum Sept. 14, 2006) (finding that the respondent’s use of the complainant’s LIFESTYLE LOUNGE mark to redirect Internet users to respondent’s own website for commercial gain does not constitute either 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)). Here, Complainant provides a screenshot of the website home page associated with the disputed domain name which resolves to a parked website with monetized links of the pay-per-click variety.[i] In the absence of a response or any other submission by Respondent, the Panel determines that Respondent does not have rights or legitimate interests in the <kingranchcannabis.com> domain name per Policy ¶¶ 4(c)(i) or (iii).
Complainant asserts that Respondent’s bad faith is demonstrated by its actual knowledge of Complainant’s rights in the KING RANCH mark prior to registering the <kingranchcannabis.com> domain name. A respondent’s actual knowledge of a complainant’s rights in a mark prior to registering a disputed domain name may demonstrate bad faith per Policy ¶ 4(a)(iii). See AutoZone Parts, Inc. v. Ken Belden, FA 1815011 (Forum Dec. 24, 2018) (“Complainant contends that Respondent’s knowledge can be presumed in light of the substantial fame and notoriety of the AUTOZONE mark, as well as the fact that Complainant is the largest retailer in the field. The Panel here finds that Respondent did have actual knowledge of Complainant’s mark, demonstrating bad faith registration and use under Policy ¶ 4(a)(iii).”). In support of this contention, the Complainant provides evidence of the use and history of its mark and notes that the mark has been licensed for use on the products of other companies that have global reach. It further asserts that the word “cannabis” bears a relationship to Complainant’s involvement in the agricultural industry and that this further indicates Respondent’s familiarity with the KING RANCH mark. The Panel thus agrees with Complainant’s contention and finds it more likely than not that the Respondent had prior knowledge of Complainant’s mark prior to registering the <kingranchcannabis.com> domain name. Such knowledge supports the conclusion that the disputed domain name was registered in bad faith per Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <kingranchcannabis.com> domain name be TRANSFERRED from Respondent to Complainant.
Steven M. Levy, Esq., Panelist
Dated: May 7, 2019
[i] Complainant provides a screenshot of the home page of the disputed domain name’s website to support this contention but it only shows a number of category headings, not actual links to third-party websites. However, the Panel’s independent review of the <kingranchcannabis.com> website confirms that, when a user clicks on one of these category headings, the site does display pay-per-click links which lead to various third-party websites that offer goods in industries related to those for which the Complainant has licensed the use of its mark.
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