WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Greenigans Lawn Care Inc. v. AAA Graphics
Case No. D2004-0247
1. The Parties
The Complainant is Greenigans Lawn Care Inc., Toronto, Ontario, Canada, represented by Lang Michener, Canada.
The Respondent is AAA Graphics, Mississauga, Ontario, Canada.
2. The Domain Name and Registrar
The disputed domain name is registered with Go Daddy Software.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on March 31, 2004. On March 31, 2004, the Center transmitted by email to Go Daddy Software a request for registrar verification in connection with the domain name at issue. On April 1, 2004, Go Daddy Software transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the "Policy"), the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules"), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the "Supplemental Rules").
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on April 5, 2004. In accordance with the Rules, paragraph 5(a), the due date for Response was April 25, 2004. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on April 30, 2004.
The Center appointed Hugues G. Richard as the sole panelist in this matter on May 10, 2004. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
4. Factual Background
The Complainant is a Canadian based company offering services in lawn and garden care. On March 22, 1999, it filed applications for the registration of trademarks GREENIGANS and GREENIGANS & Design at the Canadian Intellectual Property Office. On September 23, 2002, these trademarks were registered respectively under the registration numbers TMA 567,837 and TMA 567 855. It has used these trademarks in association with lawn care services since at least April 2, 1997.
Furthermore, the Complainant registered the domain name on or about April 19, 2000. Pursuant to the Complainant's failure to renew the registration for this domain name, the Respondent has registered it.
AAA Graphics is a Canadian business name registered to the individual Chase E. Taylor. It has registered the domain name under inaccurate contact details. The Complainant's searches at the Business Name Report has provided the Center with the accurate contact details of the Respondent. Mr. Taylor has worked for the Complainant through the company Pitbull Design Inc. in respect of the construction of a website for the disputed domain name. Mr. Taylor and Pitbull Design Inc. are claiming amounts to the Complainant in relation with this work.
5. Parties' Contentions
A. Complainant
Identical or Confusingly Similar
The Complainant contends that the disputed domain name, is identical with its registered trademark GREENIGANS, with the exception of the gTLD extension ".com" irrelevant in comparing domain names and trademarks. Alternatively, the Complainant contends that the disputed domain name and its registered trademark are confusingly similar.
Rights or Legitimate Interests
The Complainant contends that the GREENIGANS trademark is distinctive of its services as it is a wholly invented word. The Complainant adds that according to its searches from the database of the National Updated Annual Name Search (NUANS), there is no other entity having rights or interests in the name GREENIGANS.
The Complainant alleges that neither Chase Taylor nor the Respondent have received license, permission or consent from the Complainant to use the trademark GREENIGANS in a domain name or in any other context. The Complainant adds that at all material times, it has denied the Respondent's rights or legitimate interests in the disputed domain name, and has attempted to re-acquire the disputed domain name from the Respondent. It alleges that the Respondent has not complied with this request.
Registered and Used in Bad Faith
The Complainant contends that Mr. Taylor is fully aware that the disputed domain name was registered by the Complainant, and that it reflects the Complainant's trade name and trademark, because of his work for the Complainant through the Company Pitbull Design Inc. The Complainant adds that the Respondent has therefore registered the disputed domain name to extract money from the Complainant in order to be paid for the amount claimed by Mr. Taylor and Pitbull Design Inc. Mr. DeFrancesca, the President and Secretary of the Complainant, has alleged in his affidavit that even if they have agreed to buy the disputed domain name from the Respondent, it has refused to comply.
Mr. DeFranscesca has also alleged in his affidavit that the Respondent has used the domain name to create a website for an entity named Greenigans.Com in order to provide a justification for increasing the price that the Respondent could demand to the Complainant for the transfer of the disputed domain name. The Complainant contends that according to its searches the entity Greenigans.Com does not exist and that the contact details mentioned on this website were not in service.
Furthermore, the Complainant contends that inaccurate and incomplete contact particulars provided by the Respondent to the registrant at the registration of the disputed domain name, is indication of bad faith when the Respondent has knowingly provided these false and inaccurate contact details.
B. Respondent
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
The Panel finds that the disputed domain name, and the Complainant's trademark are identical. In the WIPO Cases General Electric Company v. John Bakhit, WIPO Case No. D2000-0386; Tata Tea Ltd. v. Gem Lifts Ltd., WIPO Case No. D2000-1823; and Club Mediterranee v. Yosi Hasidim, WIPO Case No. D2000-1350, this Forum has well established that the gTLD extension is irrelevant in comparing domain names and trademarks. For these reasons, the Panel finds that the domain name is identical to the Complainant's trademark GREENIGANS.
B. Rights or Legitimate Interests
The Panel finds that the Complainant has shown sufficient evidence that the Respondent has no rights or legitimate interests in the disputed domain name since the Respondent did not provide any contentions. The Complainant has made reasonable searches and has found no others as having a right or a legitimate interest in the name GREENIGANS. Furthermore, on May 20, 2004, the Panel has taken upon itself to visit the website located at "www." and has noticed that the website is not in function. A site under construction or which does not show preparation to be used should be considered as an evidence of a lack of legitimate interest pursuant to paragraph 4(c)(i) of the Policy. For these reasons, the Panel finds that the Respondent has no rights or legitimate interests in the domain name .
C. Registered and Used in Bad Faith
The Panel finds that the Complainant has shown sufficient evidence that the Respondent has registered the disputed domain name in bad faith in accordance with paragraph 4(b)(i) of the Policy. The circumstances given by the Complainant let the Panel infer that the Respondent has registered the domain name primarily for the purpose of selling this domain name registration to the Complainant who is the owner of the service mark. The Panel has taken upon itself to visit the website located at "www." and has noticed that the website is no longer in function. As the Respondent did not file any contentions, the Panel considers that the Respondent has registered the domain name to sell it for valuable consideration in excess of the costs directly related to the domain name, pursuant to the evidence provided by the Complainant that the Respondent has tried to infer that another entity was interested in the disputed domain name in order to increase its value.
Furthermore, the Panel finds that the Respondent has knowingly provided inaccurate contact details to the Registrant at the registration of the disputed domain name, as the address registered cannot exist in Canada and is therefore clearly false. The Canadian zip codes are alternatively composed of three letters and three numbers. However, the Respondent has registered the zip code AAA AAA. In the WIPO cases Lincoln Property Company v. LPC, WIPO Case No. D2001-0238; eBay Inc. v. SGR Enterprises and Joyce Ayers, WIPO Case No. D2001-0259, URDP panels have determined that this behavior may indicate bad faith from the Respondent. For these reasons, the Panel finds the Respondent as having registered and used the domain name in bad faith.
7. Decision
For all the foregoing reasons, in accordance with Paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name, be transferred to the Complainant.
Hugues G. Richard
Sole Panelist
Dated: May 21, 2004
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