WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Tim Golding and Timco Foods, Inc., v. Michael Campbell/The DotCom Factory, Inc.
Case No. D2007-0103
1. The Parties
Complainants are Tim Golding and Timco Foods, Inc., Grenada, Mississippi, United States of America, represented by Chuck Goolsbee, VP of Technical Operations for digital.forest, Inc. United States of America.
The Respondent is Michael Campbell/The DotCom Factory, Inc., Burlington, Iowa, United States of America. Mr. Campbell has submitted a Response.
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 January 26, 2007. On January 30, 2007, the Center transmitted by email to Go Daddy Software a request for registrar verification in connection with the domain name at issue, and Go Daddy Software transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details for the administrative, 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 February 5, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was February 25, 2007. The Response was filed with the Center on that date.
The Center appointed Richard G. Lyon as the sole panelist in this matter on April 2, 2007. The Panel finds that it was properly constituted and has jurisdiction over this proceeding. The Panel has submitted his 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
One or both of the Complainants, Timco Foods, Inc. or Tim Golding, is/are the original owner of the disputed domain name, first registering it in 2003. Mr. Golding is an individual apparently associated with Timco; it was he who corresponded on Timco’s behalf on several of the matters described in this section. According to Complainants’ counsel, Complainants1 registered the disputed domain name “for use by two grocery store chains . . . [that] have been operating since the 1980’s and 1950’s . . . and have used the term ‘the meat people’ in their advertising” for many years.2 There is no allegation or proof of the geographic area served by either of these grocery companies. Because of a misunderstanding in correspondence between Complainants and the registrar that it used for many domain names, the registrar did not renew the disputed domain name in March 2005. Complainants have submitted correspondence indicating that the registrar has apparently acknowledged that the registrar was at fault; in any event that registrar is representing Complainants in this proceeding. During the period of Complainants’ ownership of the disputed domain name neither Complainants nor either of the two grocery store chains ever operated an active website at the disputed domain name.
Respondent is a full-time employee of an independent grocer located in Burlington, Iowa, United States of America. He also operates a spare time business from his home in Iowa that provides services related to information technology, including website design, consulting, computer repair, and Internet domain name registration and management. The grocery business that employed Respondent has also been known by the name “the meat people” for many years.3
In late 2004, Respondent considered locating an Internet domain name for a possible website for his grocery store employer, which had recently been purchased by new owners. Respondent first states that the new owners directed him to do so (Response, p. 3) but later says that he eventually registered the disputed domain name “on his own volition” in case his employer might be able to use it (id. p. 7). One of the first names he considered was “the meat people”, since at that time there was no website operating at that domain name. When Respondent searched the Whois database, however, he discovered that this domain name was registered to a third party, presumably one or both of the Complainants. He placed a “domain name watch” on the disputed domain name in case it became available. A domain name watch is a commonly used Internet tool or service that allows domain name registrants to ensure against accidental expiry of domain names. This tool also allows people desiring particular domain names (often those consisting of or containing common words and phrases) to be notified immediately upon the names’ becoming available. Respondent quickly registered the disputed domain name upon notice of availability following Complainants’ inadvertent failure to renew it in March 2005.
Complainant Golding contacted Respondent by voicemail in November 2005, accusing Respondent of “stealing” the disputed domain name. A representative of Digital Forest, successor to Complainants’ registrar, corresponded with Respondent in December 2005 by telephone and email. Complainant offered to purchase the disputed domain name from Respondent for $4,500, though repeating the earlier voicemail assertions that Respondent’s acquisition of the disputed domain name was in violation of the Policy. Respondent declined this proposal but did offer to make the disputed domain name available for Complainants’ use provided Complainants pay Respondent’s standard charges for web hosting and management.
5. Parties’ Contentions
Complainants contend as follows:
Rights in a Mark.
Complainants’ sole allegation in this Policy element is as follows: “These grocers [the two ‘grocery store chains’ on whose behalf Complainant was allegedly acting] have been operating since the 1980’s and 1950’s respectively, and have used the term ‘the meat people’ in their advertising for decades.”4 The Panel therefore understands Complainants to be arguing that they or their clients have common law rights in the phrase incorporated into the disputed domain name.
No Rights or Legitimate Interests.
Complainants contends that Respondent has made no use of the disputed domain name since registering it more than eighteen months ago. There is no showing of a connection between Respondent and the disputed domain name; the name and nature of his business relate to computers and not to groceries. There is no showing that Respondent has commonly been known by the term “the meat people”.
Bad Faith.
Again it is worth quoting Complainants’ entire allegation on this Policy element: “It appears that Respondent registered the domain name with the intention of having the Complainant make use of Respondent’s services of web design and hosting, at a cost significantly higher than what the Complainant had historically paid with their previous registrar and host.”5 Complainants also refer to the fact that they in fact paid for the renewal of the disputed domain name that it sought but did not receive by reason of the registrar’s error.
Respondent contends as follows:
Rights in a Mark.
Complainants have not established rights in the phrase “The Meat People” sufficient to invoke the Policy. They hold no registered trademark; in fact a registered trademark for THE MEAT PEOPLE is held by a third party. Respondent discounts Complainants’ alleged use of the phrase for their clients by saying that as a common phrase “potentially hundreds of thousands of meat counters, delicatessens, grocery stores and supermarkets around the world” could make out a similar basis for such claims.
Rights or Legitimate Interests.
While acknowledging his own non-use of the disputed name for an active website, Respondent asserts that there is no fixed timetable for establishing an active website. His employer6 and he are in fact in the meat business, and he has shown the employer’s use of “The Meat People” phrase for many years. Neither Respondent nor his employer conducts business in the same geographic area as Complainant, so there is no direct competition.
Bad Faith.
Respondent had no hand in any conduct that led to Complainants’ losing the disputed domain name; therefore Respondent’s bad faith may not be inferred from this incident. Respondent never solicited Complainants’ business; the “leasing” offer he made was in response to Complainants’ proposal and was reasonable and not exorbitant, and his registration of the disputed domain name was made in the ordinary course of his business as an information technology manager, without any fraudulent intent on his part or any intent to deprive anyone of a valid trademark.
6. Discussion and Findings
Paragraph 4(a) of the Policy directs that Complainants must establish each of the following:
(i) that the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainants have rights; and
(ii) that the Respondent has no rights or legitimate interests in respect to the disputed domain name; and
(iii) that the disputed domain name has been registered and is being used in bad faith.
Complainant bears the burden of proof on each element. These requirements are conjunctive; failure to establish any one of them by competent evidence results in a denial of the Complaint.
A. Identical or Confusingly Similar/Rights in a Mark.
Complainants’ only evidence with common law rights in the phrase “The Meat People” consists of advertisements from their purported clients or customers that include this phrase immediately below the client’s name. Advertising sometimes suffices to demonstrate common law rights in a mark sufficient to invoke the Policy, but not in this proceeding. Even assuming that Complainants’ proffered advertising was typical and extended over many years, as Complainants allege, there is no showing that any identifiable group of consumers associates this phrase with Complainants (or their clients) any more than with any other meat purveyor. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions (“Overview”), paragraph 1.7 (requiring “a distinctive identifier associated with the complainant or its goods and services” or “secondary meaning”). All the advertising shows is a phrase descriptive of Complainants’ (or their clients’) goods, not that Complainants or their clients used the phrase to distinguish themselves from their competitors or that target customers made that distinction. Complainants’ or their clients’ use of the disputed domain name to sell meat might furnish sufficient additional proof of a connection between Complainant and this phrase, but Complainants did no more than park the disputed domain name throughout their ownership of it.
B. Rights or Legitimate Interests.
In light of the Panel’s findings under parts A and C of this Section 6, it is unnecessary for the Panel to make a finding on this element.
C. Registered and Used in Bad Faith.
The Complaint also fails because of Complainants’ utter failure to provide any evidence from which the Panel might infer that Respondent registered the disputed domain name with knowledge of Complainants’ mark or otherwise in bad faith. There is no evidence that Respondent knew or should have known of Complainants’ business or alleged mark. While when he initially investigated availability of the disputed domain name he might have taken note of Complainants” name as the registered owner, the name was used for a placeholder site and Respondent apparently did check to see that Complainants had no registered trademark rights in “The Meat People”. Common words or phrases are highly prized as domain names for obvious reasons and Respondent has offered two plausible (and not necessarily contradictory) reasons for obtaining the name when it became available: using it among the domain names he offered to the public in his private business, or making it available for use by his employer, which was at that time using the critical phrase in its own advertising. Neither the holding of domain names for sale or “lease” nor use of a domain name watch service is in any way improper absent evidence from which the Panel might infer that Respondent did either or both to appropriate Complainants’ mark. There is no such evidence in the record.
7. Decision
For all the foregoing reasons, the Complaint is denied.
Richard G. Lyon
Sole Panelist
Dated: April 16, 2007
1 It is unclear whether Mr. Golding or Timco Foods was the named registrant.
2 (Complaint para. 11) Although Complainant submits samples of these groceries’ advertising, there is no proof that Complainants acted as their agent or of any other connection between them and either Complainant.
3 Like Complainant, Respondent has supported this allegation with samples of print advertising that predates either party’s use of the disputed domain name. Respondent also submits a photograph of a company uniform of this entity that identifies it as “The Meat People”.
4 The Complaint has separate sections for its allegations under paragraphs 4(a)(ii) and 4(a)(iii) but none for paragraph 4(a)(i).
5 Complaint, para. 11, Section C. Complainants offer no evidence to support their charge that Respondent’s proposed charges for hosting were excessive. Their counsel’s allegations (which of course are not evidence) say only that Respondent charges more than Complainants’ “previous registrar”.
6 Respondent has submitted proof of his employment by a grocery store at all relevant times.
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