WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION AGCO Corporation v. Anthonny, Network Service Case No. D2009-0872 1. The Parties
Complainant is AGCO Corporation of Duluth, Georgia, United States of America.
Respondents are Anthonny, Network Service, both of Santiago, California, United States of America (hereinafter referred to jointly and severally as “Respondent”). 2. The Domain Name and Registrar
The disputed domain name is registered with OnlineNic, Inc. d/b/a C. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 30, 2009. On July 1, 2009, the Center transmitted by email to OnlineNic, Inc. d/b/a China-C a request for registrar verification in connection with the disputed domain name. On July 2, 2009, OnlineNic, Inc. d/b/a China-C transmitted by email to the Center its verification response, confirming that the Respondent is listed as the registrant and providing the contact details. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), 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 July 6, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was July 26, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on July 27, 2009.
The Center appointed M. Scott Donahey as the sole panelist in this matter on August 4, 2009. 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
Complainant is a designer, manufacturer and distributor of agricultural equipment and parts under brand names such as, Agco, Massey-Ferguson, Fendt, White, Challenger, and Hesston. It sells parts and equipment in one hundred forty countries around the world. In the calendar year 2008, Complainant's net sales were in excess of USD 8.4 billion.
Complainant is the holder of numerous registrations for the trademark AGCO in 87 countries, including the United States. The earliest registration of the AGCO mark by the United States Patent and Trademark Office issued on August 16, 1994, and shows a first use in commerce on June 1, 1991. Complaint, Annex 1.
Complainant registered the domain name and uses it to resolve to a web site at which it features information about Complainant and the products and services Complainant offers. Complaint, Annex 2.
Complainant also publishes AGCO parts books, both in print and on line. On October 27, 2006, Complainant registered the domain name to resolve to a web site at which Complainant's AGCO Parts Books are published. Complaint Annex 3. These parts books offer for sale the parts designed, manufactured, and/or distributed by Complainant. Complaint, Annexes 6 and 7.
Respondent registered the domain name at issue on January 3, 2008. Complaint, Annex 4. Respondent uses the domain name at issue to resolve to a web site at which agricultural equipment and parts are offered for sale by competitors of Complainant. Complaint, Annex 9. Complainant has never licensed or otherwise authorized Respondent to use the AGCO mark in any way.
In August of 2007 the domain name at issue had been registered by a third party other than Respondent. Complainant's counsel sent a cease and desist letter to the registrant of the domain name in August 2007. Complaint, Annex 11. Complainant's counsel received no response thereto. 5. Parties' Contentions A. Complainant
Complainant contends that the domain name at issue is identical or confusingly similar to Complainant's AGCO mark, that Respondent has no rights or legitimate interests in respect of the domain name at issue, and that Respondent has registered and is using the domain name at issue in bad faith. B. Respondent
Respondent did not reply to Complainant's contentions. 6. Discussion and Findings
Paragraph 15(a) of the Rules instructs the Panel as to the principles the Panel is to use in determining the dispute: “A Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.”
Paragraph 4(a) of the Policy directs that the complainant must prove each of the following:
(1) that the domain name registered by the respondent is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(2) that the respondent has no rights or legitimate interests in respect of the domain name; and
(3) that the domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
The domain name at issue consists of the Complainant's long-standing trademark and the addition of the common words “parts book.” Complainant's parts are sold online at the web site to which Complainant's domain name resolves and at which AGCO Parts Books are published for the various equipment that Complainant designs, manufactures, and/or distributes. It is in these online parts books that Complainant offers its parts for sale.
Where a term is added to a trademark in a domain name, which term is related to the goods or services in connection with which the mark is used, the domain name is confusingly similar to the trademark. EAuto, L.L.C. v. EAuto Parts,WIPO Case No. D2000-0096 (concerning the domain name ). B. Rights or Legitimate Interests
The consensus view of WIPO panelists concerning the burden of establishing no rights or legitimate interests in respect of the domain name is as follows:
While the overall burden of proof rests with the complainant, panels have recognized that this could result in the often impossible task of proving a negative, requiring information that is often primarily within the knowledge of the respondent. Therefore a complainant is required to make out a prima facie case that the respondent lacks rights or legitimate interests. Once such prima facie case is made, respondent carries the burden of demonstrating rights or legitimate interests in the domain name. If the respondent fails to do so, a complainant is deemed to have satisfied paragraph 4(a)(ii) of the UDRP.
WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Section 2.1.
In the present case the Complainant alleges that Respondent has no rights or legitimate interests in respect of the domain name, and Respondent has failed to assert any such rights. Accordingly, the Panel finds that Respondent has no rights or legitimate interests in respect of the domain name at issue. C. Registered and Used in Bad Faith
The domain name at issue resolves to a “parking site.” The parking site contains links to companies who sell goods directly competitive with the trademarked goods of Complainant. It is Respondent who profits from the revenues derived from the parking site. This misuse of the domain name at issue constitutes a violation of paragraph 4(b)(iv) of the Policy and is evidence of bad faith registration and use under the policy. Villeroy & Boch AG v. Mario Pingerna,WIPO Case No. D2007-1912. 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 Complainant.
M. Scott Donahey
Sole Panelist
Dated: August 10, 2009
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