The Complainant is PBM Group, Inc. of Lancaster, Pennsylvania, United States of America, represented by Barley Snyder LLC, United States of America.
The Respondent is Compost Barrel Inc of Fremont, California, United States of America. 2. The Domain Name and Registrar
The disputed domain name is registered with eNom. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 10, 2010. On December 13, 2010, the Center transmitted by email to eNom a request for registrar verification in connection with the disputed domain name. On December 13, 2010, eNom 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 December 16, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was January 5, 2011. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 6, 2011.
The Center appointed Professor Ilhyung Lee as the sole panelist in this matter on January 13, 2011. 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 manufacturer of composting systems. It is the listed owner of the mark, COMPOSTUMBLER, registered with the United States Patent and Trademark Office, on January 6, 1987, for “rotary compost forming machines.” Registration materials indicate “first use in commerce” of September 1975.
The disputed domain name was registered on June 12, 2009. 5. Parties’ Contentions A. Complainant
The Complainant contends that: (i) the disputed domain name is identical or confusingly similar to the mark in which the Complainant has rights; (ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and (iii) the disputed domain name has been registered and is being used in bad faith.
In addition, the Complainant states, inter alia, that: COMPOSTUMBLER is “an invented word and as such, is not one that another company would legitimately choose unless seeking to create a false impression of association with [the Complainant’s] products;” the Respondent is a direct competitor of the Complainant, and had “constructive, if not actual notice of [the Complainant’s] mark;” and the Respondent’s use of the disputed domain name “would cause members of the public to assume that there was a connection or association between the Complainant and the registrant of the domain name.” B. Respondent
The Respondent did not reply to the Complainant’s contentions.
Paragraphs 5(e) and 14(a) of the Rules permit the Panel to decide the dispute based on the Complaint. The Panel may also draw appropriate inferences from the Respondent’s default, under paragraph 14(b). 6. Discussion and Findings A. Identical or Confusingly Similar
The Panel determines that the disputed domain name is identical or confusingly similar to a mark in which the Complainant has rights, COMPOSTUMBLER.
The Complainant has demonstrated the first element. B. Rights or Legitimate Interests
The Complainant contends that the Respondent has no rights or legitimate interests in respect of the disputed domain name; in doing so, the Complainant has met its initial burden of making a prima facie showing. The burden shifts to the Respondent to demonstrate any such rights or legitimate interests. The Respondent has defaulted. The Panel is unable to ascertain any evidence that would demonstrate the Respondent’s rights or legitimate interests in the disputed domain name, as described in paragraph 4(c) of the Policy, or otherwise.
The second element is satisfied. C. Registered and Used in Bad Faith
The Complainant must also show that the disputed domain name “has been registered and is being used in bad faith,” as set forth in paragraph 4(a)(iii) of the Policy. Paragraph 4(b) provides a non-exhaustive list of circumstances that are evidence of bad faith in the registration and use of a domain name. The Complainant emphasizes paragraph 4(b)(iv); the Panel agrees.
Internet users who refer to the disputed domain name are taken to a website whose content includes various references to composting products and operations. The Panel concludes that the Respondent, by using the disputed domain name, has “intentionally attempted to attract, for commercial gain, Internet users to [the Respondent’s] website . . ., by creating a likelihood of confusion with the [C]omplainant’s mark as to the source, sponsorship, affiliation, or endorsement” of the Respondent’s website, under paragraph 4(b)(iv) of the Policy.
The third element is present. 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 disputed domain name be transferred to the Complainant.
Ilhyung Lee
Sole Panelist
Dated: January 26, 2011
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