Farmer’s Business Network, Inc. v. Farmers Business Network / Farmers
Claim Number: FA2210002016905
Complainant is Farmer’s Business Network, Inc. (“Complainant”), represented by William Knox, US. Respondent is Farmers Business Network / Farmers (“Respondent”), Kenya.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <fbnfarmersbusinessnetwork.com>, registered with Google 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.
Ho-Hyun Nahm, Esq. as Panelist.
Complainant submitted a Complaint to Forum electronically on October 20, 2022; Forum received payment on October 20, 2022.
On October 20, 2022, Google LLC confirmed by e-mail to Forum that the <fbnfarmersbusinessnetwork.com> domain name is registered with Google LLC and that Respondent is the current registrant of the names. Google LLC has verified that Respondent is bound by the Google 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 October 24, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 14, 2022 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@fbnfarmersbusinessnetwork.com. Also on October 24, 2022, 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, Forum transmitted to the parties a Notification of Respondent Default.
On November 16, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Ho-Hyun Nahm, Esq. as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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
i) Complainant has rights in the FARMERS BUSINESS NETWORK mark through its registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 5,258,050 registered August 1, 2017). Complainant also has rights in the FBN mark through its registration with the USPTO (e.g., Reg. No. 5,078,480 registered November 8, 2016). The disputed domain name is confusingly similar to Complainant’s marks because it incorporates the FARMERS BUSINESS NETWORK and FBN marks in their entirety, and adds the “.com” generic top-level domain (“gTLD”).
ii) Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name and Complainant has not authorized or licensed Respondent any rights in the FARMERS BUSINESS NETWORK or FBN marks. Additionally, Respondent does not use the disputed domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, the disputed domain name resolves to an inactive webpage.
iii) Respondent registered and uses the disputed domain name in bad faith. The disputed domain name resolves to an inactive webpage. Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the FARMERS BUSINESS NETWORK and FBN marks.
B. Respondent
Respondent did not submit a Response in this proceeding.
1. The disputed domain name was registered on July 18, 2022.
2. Complainant has rights in the FARMERS BUSINESS NETWORK mark through its registration with the USPTO (e.g., Reg. No. 5,258,050 registered August 1, 2017).
3. Complainant also has rights in the FBN mark through its registration with the USPTO (e.g., Reg. No. 5,078,480 registered November 8, 2016).
4. The disputed domain name resolves to an inactive webpage.
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 FARMERS BUSINESS NETWORK mark through its registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 5,258,050 registered August 1, 2017). Complainant also claims rights in the FBN mark through its registration with the USPTO (e.g., Reg. No. 5,078,480 registered November 8, 2016). Registration of a mark with the USPTO is a valid showing of rights in a mark under Policy ¶ 4(a)(i). Since Complainant provides evidence of registration for the FARMERS BUSINESS NETWORK and FBN marks with the USPTO, the Panel finds that Complainant has rights in the mark under Policy 4(a)(i).
Complainant contends that the disputed domain name <fbnfarmersbusinessnetwork.com> is confusingly similar to Complainant’s FARMERS BUSINESS NETWORK and FBN marks. The combination of multiple marks does not negate a finding of confusing similarity per Policy ¶ 4(a)(i). See Textron Innovations Inc. v. Sheng Liang / Sarawina, FA 1622906 (Forum July 20, 2015) (finding confusing similarity under Policy ¶ 4(a)(i) where Respondent’s <greenleetextron.com> domain name merely combined Complainant’s TEXTRON and GREENLEE marks and added the “.com” generic top-level domain suffix.). Here, the disputed domain name contains both marks in their entirety while adding the “.com” gTLD. Therefore, the Panel finds the disputed domain name is confusingly similar to Complainant’s marks 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), then the burden shifts to Respondent to show 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 contends that Respondent lacks rights or legitimate interests in the disputed domain name since Respondent is not commonly known by the disputed domain name and Complainant has not authorized or licensed to Respondent any rights in the FARMERS BUSINESS NETWORK or FBN marks.
Respondent registered the disputed domain name anonymously, indicating that Respondent is not known by any other name in anyway related to the disputed domain name. The Panel notes that there is nothing in the records to suggest that Respondent is commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Complainant also contends that Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use as the disputed domain name resolves to an inactive webpage. Complainant provides evidence of the disputed domain name resolving to an inactive webpage. Therefore, the Panel finds that Respondent fails to use the disputed domain name for a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶ 4(c)(i) or (iii).
The Panel finds that Complainant has made out a prima facie case that arises from the considerations above. All of these matters go to make out the prima facie case against Respondent. As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.
Complainant contends that, because the disputed domain name resolves to an inactive webpage, Respondent has engaged in inactive holding and thus demonstrated bad faith registration and use. The Panel recalls Complainant provides a screenshot showing the disputed domain name resolves to an inactive webpage. The Panel observes that the inactive use of a domain name does not necessarily circumvent a finding that the domain name is being used in bad faith within the requirements of paragraph 4(a)(iii) of the Policy. See Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003 (finding that in considering whether the passive holding of a domain name, following a bad faith registration of it, satisfies the requirements of paragraph 4(a)(iii), the panel must give close attention to all the circumstances of the respondent’s behavior, and a remedy can be obtained under the Policy only if those circumstances show that the respondent’s passive holding amounts to acting in bad faith.)
The particular circumstances of this case that the Panel has considered are:
i) Due to the continued use of Complainant’s marks in commerce for approximately seven years prior to Respondent’s registering the domain name, Complainant’s marks are considered as being known among relevant consumers;
ii) Respondent formed the disputed domain name by combining Complainant’s both marks FARMERS BUSINESS NETWORK and FBN; and
iii) Respondent has provided no evidence whatsoever of any actual or contemplated good faith use by it of the disputed domain name.
Taking into account the circumstances above, the Panel concludes that Respondent’s inactive use of the disputed domain name constitutes bad faith under Policy, paragraph 4(a)(iii) and that Respondent is using the disputed domain name in bad faith.
Complainant additionally contends Respondent registered the disputed domain name in bad faith as Respondent had actual knowledge of Complainant’s rights in Complainant’s marks prior to registration of the disputed domain name based on the continued use of the marks for approximately seven (7) years prior to the registration of the disputed domain name. While constructive knowledge is insufficient for a finding of bad faith, worldwide prominence of a mark can demonstrate actual knowledge of a complainant’s rights in a mark at registration and show bad faith under Policy ¶ 4(a)(iii). See The Am. Auto. Assoc., Inc. v. Zag Media Corp., FA 1226952 (Forum Nov. 13, 2008) ("Mere constructive knowledge is insufficient to support a finding of bad faith."); see also 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).”). The Panel infers, due to the continued use of Complainant’s marks as noted above and the formation of the disputed domain name by combining Complainant’s both marks FARMERS BUSINESS NETWORK and FBN that Respondent registered the disputed domain name with knowledge of Complainant’s rights in Complainant’s marks which constitutes 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 <fbnfarmersbusinessnetwork.com> domain name be TRANSFERRED from Respondent to Complainant.
Ho-Hyun Nahm, Esq., Panelist
Dated: November 22, 2022
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