WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION TruGreen L.P. v. Pitchman101, Jerry Malczewski Case No. D2009-1625 1. The Parties
Complainant is TruGreen L.P. of Memphis, Tennessee, United States of America, internally represented.
Respondent is Pitchman101, Jerry Malczewski, Colorado, United States of America. 2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with GoD, Inc. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 2, 2009. On December 4, 2009, the Center transmitted by e-mail to GoD, Inc. a request for registrar verification in connection with the Domain Name. On December 7, 2008, GoD, Inc. transmitted by e-mail to the Center its verification response disclosing registrant and contact information for the Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an e-mail communication to Complainant on December 10, 2009, providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amendment to the Complaint on December 10, 2009. The Center verified that the Complaint together with the amendment to 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 Respondent of the Complaint, and the proceedings commenced on December 11, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was December 31, 2009. Respondent did not submit any response. Accordingly, the Center notified Respondent of his default on January 4, 2010.
The Center appointed Robert A. Badgley as the sole panelist in this matter on January 8, 2010. 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 provides lawn-care services throughout the United States under the mark TRUGREEN. This mark has been registered with the United States Patent and Trademark Office since 1996. In addition, Complainant has offered such services via a website located at , a domain name Complainant has held since 1994.
Respondent registered the Domain Name on April 6, 2009. The website to which the Domain Name resolves featured, as of October 7, 2009, hyperlinks to websites offering lawn-care services provided by companies other than Complainant.
In October and November 2009, Complainant communicated with Respondent regarding the Domain Name. Complainant requested that the Domain Name be transferred to Complainant. Respondent claimed that he intended to develop a “green living” website. Subsequently, he asserted that he may develop a site related to lottery results. 5. Parties' Contentions A. Complainant
Complainant's factual contentions are set forth in the “Factual Background” section above. These contentions are supported with documentary evidence annexed to the Complaint, and undisputed by Respondent. Complainant's arguments will be discussed in the “Discussion and Findings” section below. B. Respondent
Respondent did not reply to Complainant's contentions. 6. Discussion and Findings
Paragraph 4(a) of the Policy lists the three elements which Complainant must satisfy with respect to each Domain Name:
(i) the Domain Name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) the Domain Name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
The Panel concludes that Complainant has established registered trademark rights in TRUGREEN. The record supports this conclusion, and Respondent has not disputed it.
The Domain Name incorporates Complainant's mark in its entirety, without adornment, and hence is identical to Complainant's mark.
Accordingly, the Panel finds that Policy paragraph 4(a)(i) is satisfied. B. Rights or Legitimate Interests
Pursuant to paragraph 4(c) of the Policy, Respondent may establish its rights or legitimate interests in the Domain Name, among other circumstances, by showing any of the following elements:
(i) before any notice to you [Respondent] of the dispute, your use of, or demonstrable preparations to use, the Domain Name or a name corresponding to the Domain Name in connection with a bona fide offering of goods or services; or
(ii) you [Respondent] (as an individual, business, or other organization) have been commonly known by the Domain Name, even if you have acquired no trademark or service mark rights; or
(iii) you [Respondent] are making a legitimate noncommercial or fair use of the Domain Name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
Complainant bears the burden of proof on the “rights or legitimate interests” issue (as he does for all three elements of the Policy). Louis de Bernieres v. Old Barn Studios Limited,WIPO Case No. D2001-0122 (March 26, 2001). Nevertheless, the panel in PepsiCo, Inc. v. Amilcar Perez Lista d/b/a Cybersor,WIPO Case No. D2003-0174 (April 22, 2003), rightly observed as follows: “A [r]espondent is not obliged to participate in a domain name dispute proceeding, but its failure to do so can lead to an administrative panel accepting as true the assertions of a complainant which are not unreasonable and leaves the respondent open to the legitimate inferences which flow from the information provided by a complainant.” As noted above, Respondent did not file a Response and hence did not attempt to rebut any of Complainant's assertions.
There is no evidence that Respondent has ever been authorized to use Complainant's mark in a domain name or otherwise. Likewise, there is no evidence that Respondent is commonly known by the Domain Name, or has made substantial preparations to use the Domain Name in connection with a bona fide offering of goods or services.
Finally, Respondent has not claimed in this proceeding any noncommercial or fair use of the TRUGREEN mark in its Domain Name, and the Panel finds no basis for recognizing any such use. The claims by Respondent in correspondence with Complainant that he intends to develop a site for “green living” or lottery results cannot be credited, particularly since the site contained links to other lawn-care providers.
Accordingly, the Panel finds that Policy paragraph 4(a)(ii) is satisfied. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides that the following circumstances, “in particular but without limitation,” are evidence of the registration and use the Domain Name in “bad faith”:
(i) circumstances indicating that Respondent has registered or has acquired the Domain Name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to Complainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of its documented out-of-pocket costs directly related to the Domain Name; or
(ii) that Respondent has registered the Domain Name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct; or
(iii) that Respondent has registered the Domain Name primarily for the purpose of disrupting the business of a competitor; or
(iv) that by using the Domain Name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent's website or other on-line location, by creating a likelihood of confusion with Complainant's mark as to the source, sponsorship, affiliation, or endorsement of Respondent's website or location or of a product or service on Respondent's website or location.
Without citing the provision expressly, Complainant appears to rely chiefly on paragraph 4(b)(iv) of the Policy, quoted immediately above, to support its bad faith argument.
The Panel finds that Respondent is in bad faith under paragraph 4(b)(iv). Respondent registered the Domain Name, which is identical to Complainant's name and the mark under which Complainant has traded for many years. Complainant alleges, and Respondent has not denied, that Respondent's conduct constitutes an intentional attempt to attract, for commercial gain, Internet users to Respondent's site by creating a likelihood of confusion between the TRUGREEN mark and the Domain Name. The unrebutted allegation that Respondent is deriving revenue at the website is reasonable to accept based on the content of the site, which contains links to lawn-care services offered by Complainant's competitors.
Accordingly, the Panel finds that Policy paragraph 4(a)(iii) is satisfied. 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.
Robert A. Badgley
Sole Panelist
Dated: January 11, 2010
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