WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Tractor Supply Co. of Texas, LP, and Tractor Supply Company v. Above.com Domain Privacy / Transure Enterprise Ltd.
Case No. D2011-0487
1. The Parties
The Complainants are Tractor Supply Co. of Texas, LP, and Tractor Supply Company of Nashville, Tennessee, United States of America, represented by Waller Lansden Dortch & Davis, LLP, United States of America.
The Respondent is Above.com Domain Privacy of Beaumaris, Victoria, Australia / Transure Enterprise Ltd of Tortola, Virgin Islands, Overseas Territory of the United Kingdom of Great Britain and Northern Ireland.
2. The Domain Name and Registrar
The disputed domain name <tractorsupplycompeny.com> is registered with Above.com, Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 16, 2011. On March 16, 2011, the Center transmitted by email to Above.com, Inc. a request for registrar verification in connection with the disputed domain name. On March 18, 2011, Above.com, Inc. transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on March 22, 2011 providing the registrant and contact information disclosed by Above.com, Inc., and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amendment to the Complaint on March 25, 2011.
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 the Respondent of the Complaint, and the proceedings commenced on March 30, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was April 19, 2011. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 20, 2011.
The Center appointed James Bridgeman as the sole panelist in this matter on May 2, 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 Complainants in this administrative proceeding are Tractor Supply Co. of Texas LP, a Texas limited partnership, and Tractor Supply Company, a Delaware corporation, both located in the United States of America. Tractor Supply Company serves as the sole general partner of Tractor Supply Co. of Texas LP.
The first named Complainant is the registered owner of the following United States registered trademarks:
(a) United States trademark registration number 3,039,473 for TRACTOR SUPPLY CO. (standard characters) for “retail store services in the field of animal care, home improvement, recreation, and apparel; retail store services in the field of automotive accessories, namely batteries, lubricants, tarps, truck toolboxes, trailers, towing parts, and fuel tanks; retail store services in the field of maintenance equipment, namely air compressors, welders, generators, pumps, electrical products, plumbing, and paint; retail store services in the field of lawn and garden products, namely seed and bulbs, fertilizer, windmills, and yard accessories.”
(b) United States trademark registration number 1,846,015 for TSC TRACTOR SUPPLY CO. (and design) for “retail stores featuring hardware; automotive supplies; household supplies; apparel; pet foods and pet supplies; farm supplies; swimming pool supplies and lawn care equipment; and mail order catalog services featuring hardware; automotive supplies; pet foods and pet supplies; farm supplies; namely fencing, livestock feeds, mineral supplements, livestock feeders and waterers, veterinary supplies, rope and twine; sprayers; pumps; paints and painter’s supplies; air compressors; welders and welding supplies; and electrical and gas heaters.”
The Complainants carry on business through their chain of retail stores in the United States since 1938 and have had an Internet presence and carried on retail sales online at their web site at “www.tractorsupply.com” since May 1999.
According to the WhoIs database of Above.com, Inc. (the “Registrar”) on March 10, 2011, the registrant of the disputed domain name <tractorsupplycompeny.com> is Above.com Domain Privacy. In response to an enquiry from the Center the Registrar on March 18, 2011 disclosed that the registrant of the disputed domain name under the privacy shield is Transure Enterprise Ltd.
According to the information supplied by the Registrar to the Center, the current registrant registered or acquired the registration of the disputed domain name on January 25, 2011.
5. Parties’ Contentions
The Complainants claim rights in the name Tractor Supply Company, in the TRACTOR SUPPLY Co. and TSC TRACTOR SUPPLY CO. (and design) trademarks (the “TRACTOR SUPPLY Marks”), and in their domain name <tractorsupply.com>.
The Complainants rely on their ownership of the above United States trademark registrations and their rights at common law accrued through use of their company name, their TRACTOR SUPPLY Marks use and their domain name <tractorsupply.com>.
The Complainants submit that since as early as 1938, they, or their predecessors-in-interest, have operated a retail business under the TRACTOR SUPPLY COMPANY service mark. The Complainants’ operations began when Charles E. Schmidt, Jr. of Chicago, Illinois, established a small mail order parts business. By 1939, this modest business had grown into a successful retail store in Minot, North Dakota and developed into an enterprise with annual net sales over three billion USD in 2009 with at least one thousand and one (1001) stores in forty-four (44) states in the United States. The Complainants own one of the largest retail store chains in America and the leading farm and ranch brand in the United States.
The Complainants submit that they have acquired substantial goodwill in said trademarks through their use in commerce for over seventy (70) years. The Complainants carry on business as the Tractor Supply Company and submit that their TRACTOR SUPPLY Marks are widely known to consumers to identify specifically the Complainants’ chain of retail stores and web site.
The Complainants submit that they have invested substantial time, expense and effort in the creation of goodwill and fame surrounding the TRACTOR SUPPLY Marks and have acquired valid and far-reaching common law trademark rights therein. In 2009 alone, the Complainants spent USD 45.7 million in advertising their brand and have produced the 2009 Annual Report to support this assertion.
The Complainants’ online marketplace is located at their web site “www.tractorsupply.com”. The Complainants have acquired far-reaching common law trademark rights in the <tractorsupply.com> domain name based on their use in commerce since at least as early as May 8, 1999. The Complainants are also the owners of the following domain names: <tractorsupplycompany.com> (first use as early as January 2007); <tractorsupplyco.com> (first use as early as April 10, 1997); and <tractorsupply.org>.
The Complainants submit that the disputed domain name consists of the Complainants TRACTOR SUPPLY COMPANY mark with the mere substitution of the letter “e” for the letter “a.” The Complainants submit that such minor alterations do not negate the confusingly similar character of the disputed domain name. See DaimlerChrysler Corporation v. Worshiping, Chrisler, and Chr, aka Dream Media and aka Peter Conover, WIPO Case No. D2000-1272 (in ordering the transfer of the disputed domain names <crysler.com>, <chrisler.com>, <chrystler.com>, and <christler.com> to the complainant, owner of the mark CHRYSLER, noting that where “[t]he only distinction between the domain names and The Complainant’s mark is, in most cases, a single change in a letter in the middle of the word that constitutes the mark,” the disputed domain names “are without doubt confusingly similar to Complainant’s mark”).
The Complainants submit that the Respondent’s use of the disputed domain name is intentionally designed to cause deception, mistake and confusion among consumers seeking information with regard to the services of the Complainants. The Complainants submit that the slight difference between the disputed domain name and the Complainants’ TRACTOR SUPPLY Marks is immaterial and submit that in fact, this slight difference, which fails to form a new term but merely creates a variant of the Complainants’ domain name, strongly suggests that the Respondent registered the disputed domain name in order to engage in “typosquatting.” Go Daddy Software, Inc. v. Daniel Hadani, WIPO Case No. D2002-0568 (holding that respondent’s domain names <fodaddy.com>, <gidaddy.com>, and <gpdaddy.com> are “confusingly similar” to the complainant’s marks GO DADDY and GO DADDY SOFTWARE and the Complainant’s domain name <godaddy.com>); see also Bang & Olufsen a/s v. Unasi Inc., WIPO Case No. D2005-0728 (citing Reuters Limited v. Global Net 2000, Inc, WIPO Case No. D2000-0441).
The Complainants argue that typosquatted domain names “are ‘confusingly similar’ by definition because the sole attraction of the domain names is their confusing similarity to famous marks.” Go Daddy Software, Inc. v. Daniel Hadani, WIPO Case No. D2002-0568.
The Complainants submit that the Respondent has no rights or legitimate interests in the disputed domain name. The Complainants submit that section 32(1) of the Lanham Act imposes liability for infringement of a registered mark upon any person who uses such a mark without permission in interstate commerce in the United States in connection with the sale or advertising of confusingly similar goods or services. Consistent with the Lanham Act, the Complainants aver that the Respondent cannot have any rights or legitimate interests in the disputed domain name because any such rights are contrary to well-established principles of trademark law and violate the Complainants’ trademark rights.
The Complainants state that they have never granted the Respondent rights to use the TRACTOR SUPPLY Marks and argue that the Respondent has never used the disputed domain name in connection with a bona fide offering of goods and services, nor demonstrated preparations to do so. Neither is the disputed domain name being used for a noncommercial or fair use purpose.
Furthermore, the Complainants submit that to the best of their knowledge, the Respondent has never demonstrated preparations to use the disputed domain name in connection with a bona fide offering of goods and services. Rather, the Respondent has used, and is currently using, the disputed domain name to generate revenue from traffic diverted from the web sites established by the Complainants at the “www.tractorsupply.com”, “www.tractorsupplycompany.com” and “www.tractorsupplyco.com” addresses. The Complainants submit that the Respondent is simply using the disputed domain name to attract confused customers of the Complainants, diverting those customers to third party websites. The Complainants argue that commercial use of a domain name to confuse and divert Internet traffic or to trade on the name of another is not a legitimate use of a domain name. See Pierce Brosnan v. Network Operations Center, WIPO Case No. D2003-0519.
The Complainants submit specifically, that the Respondent is using, or has authorized the use of, the disputed domain name to participate in a revenue-generating program whereby the Respondent redirects Internet users to other commercial websites for profit. The Complainants argue that use of a domain name solely to generate advertisements does not establish any legitimate interest in a domain name. See Bank of America Corp. v. Out Island Props., Inc., NAF Claim No. FA0304000154531 (use of infringing domain names to direct Internet traffic to a search engine website hosting pop-up advertisements constitutes evidence of a lack of rights or legitimate interests in a domain name); see also Mamar, Inc. v. Order Your Domains, WIPO Case No. D2005-1163 (“previous panels have held that use of a domain name that merely offers links to other websites is not a bona fide offering of goods and services pursuant to the Policy”); Geoffrey, Inc. v. Toyrus.com, NAF Claim No. FA0303000150406 (the diversion of Internet users to a website that featured pop-up advertisements and an Internet directory was neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the domain name). The Complainants submit that the Respondent, therefore, is not making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain and intent to mislead consumers.
Additionally, the Complainants argue that there is no evidence that the disputed domain name is the actual legal name of the Respondent or is commonly used to identify the Respondent without violating the Complainants’ trademark rights. Moreover, the phrase “tractorsupplycompeny”, has no value and would not be natural to choose for any kind of service offered via the Internet, were it not for the Complainants’ domain name and longstanding trademark rights. Rather, due to the Complainants’ federal trademark registrations and widespread use of the TRACTOR SUPPLY Marks, it is highly unlikely that the Respondent was unaware of the Complainants’ rights in the TRACTOR SUPPLY Marks at the time of registration. Thus, it becomes clear that the Respondent has registered this disputed domain name because of its confusing similarity to the Complainants’ <tractorsupply.com>, <tractorsupplycompany.com> and <tractorsupplyco.com> domain names and TRACTOR SUPPLY trademarks.
The Complainants submit the disputed domain name was registered and is being used in bad faith.
The Complainants request this Panel to note that the disputed domain name was registered by the Respondent, without the permission of the Complainants on January 25, 2011, more than seventy (70) years after the Complainants first began using the TRACTOR SUPPLY COMPANY name and marks and nearly twelve (12) years after the Complainants established their web site at “www.tractorsupply.com”.
The Complainants refer to paragraph 4(b) of the Policy that sets out four non-exclusive prima facie indicia of bad faith:
(i) circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that the complainant, for valuable consideration in excess of documented out-of-pocket costs directly related to the domain name; or
(ii) the 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) the respondent has registered the domain primarily for the purpose of disrupting the business of a competitor; or
(iii) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the respondent’s website or location or of a product or service on the website or location.
The Complainants ask this Panel to look at the “totality of circumstances” surrounding the registration of the domain name in question. See Twentieth Century Fox Film Corp. v. Risser, NAF Claim No. FA0002000093761; see also Do The Hustle, LLC v. Tropic Web, WIPO Case No. D2000-0624 (“the examples [of bad faith] in Paragraph 4(b) are intended to be illustrative, rather than exclusive”) the Complainants submit that “[i]t does not matter that the facts. . . may not fall within any of the circumstances described at paragraph 4(b) of the Policy. Those circumstances are . . examples of bad faith registration and use, and do not in any way limit the ability of panels to find that circumstances other than those described at paragraph 4(b) can amount to bad faith registration and use.” Fox News Network, L.L.C. v. Kenneth A. Young, WIPO Case No. D2003-0407.
The Complainants submit that the Respondent has registered or acquired the disputed domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the Complainants or to a competitor of the Complainants, for valuable consideration in excess of its documented out-of pocket costs directly related to the disputed domain name.
The Complainants submit that given the similarity of the disputed domain name to the Complainants’ domain names <tractorsupply.com>, <tractorsupplycompany.com> and <tractorsupplyco.com> it is nearly inconceivable that the Respondent was not aware of the Complainants’ rights at the time it registered the disputed domain name. It is therefore reasonable to infer that a primary purpose of the registration of the disputed domain name was to resell it for a profit.
Given the considerable presence of the Complainants in the retail industry, the Complainants submit that it is evident that the Respondent also registered and is holding the disputed domain name to prevent the Complainants from registering it and seeks to benefit from those customers searching for the Complainants’ website. The Complainants submit that the Respondent’s attempts to prevent the Complainants from registering the disputed domain name and its interference with the Complainants’ Internet presence also violate the Policy, paragraph 4(b)(iii). See generally Pepperdine University v. BDC Partners, Inc., WIPO Case No. D2006-1003.
The Complainants argue that moreover, by registering the disputed domain name that anticipates typographical errors of Internet users, the Respondent intends to divert users attempting to access the Complainants’ website in order to offer them the goods and services of third parties.
This practice, known as typosquatting is evidence of bad faith registration and use. See Go Daddy Software, Inc. v. Daniel Hadani, WIPO Case No. D2002-0568; see also Classmates Online, Inc. v. John Zuccarini, individually and dba RaveClub Berlin, WIPO Case No. D2002-0635 (“[t]yposquatting is presumptive—well nigh conclusive—evidence of registration and use in bad faith.”) The Respondent’s sole intent is to capitalize on the likelihood of consumer confusion that the Complainants have created for the Respondent’s own pecuniary gain, in violation of the Policy, paragraph 4(b)(iv).
The Complainants submit in the Complaint as initially filed, that repeated findings of bad faith are indicative of continued bad faith motives. See Tractor Supply Company v. Forum LLC, WIPO Case No. D2006-1320. In the Complaint as initially filed, the Complainants submit that the first named Respondent, a purported “identity shield” service, has either itself repeatedly infringed the rights of numerous third parties, or has repeatedly assisted other registrants in infringing the rights of numerous others by concealing true registrants’ identities. As such, the first named Respondent has been involved in and lost a number of UDRP cases. See, e.g., Certified Parts Corporation v. Above.com Domain Privacy and Transure Enterprise Ltd, WIPO Case No. D2009-1037; First Citizens Bancshares Inc. v. Above.com Domain Privacy/Transure Enterprise Ltd, WIPO Case No. D2010-0518; Children’s Cancer Research Fund v. Above.com Domain Privacy/Transure Enterprise Ltd, WIPO Case No. D2009-0490.
The Complainants conclude their arguments by submitting that based upon the foregoing circumstances, “it is not possible to conceive of any plausible actual or contemplated use of the [disputed domain name] by the Respondent that would not be illegitimate, such as by being a passing off, an infringement of consumer protection legislation, or an infringement of the Complainant[s]’ rights under trademark law.” Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003. As such, the Complainants respectfully submit that the disputed domain name was registered and is being used in bad faith.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Paragraph 4(a) of the Policy requires the Complainants to prove each of the following three elements in respect of the disputed domain name to obtain an order that a domain name should be cancelled or transferred:
(1) that the disputed domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainants have rights; and
(2) that the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(3) that the disputed domain name has been registered or is being used in bad faith.
While this is an undefended Complaint, the Complainants are not automatically entitled to succeed. The Complainants must discharge the burden of proof on the balance of probabilities in respect of paragraph 4(a)(i) and 4(a)(iii) of the Policy and must establish a prima facie case in respect of paragraph 4(a)(ii) of the Policy and this Panel is obliged to test the proofs offered by the Complainant. The WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”) provides the following relevant question and answer:
“4.6 Does failure of a respondent to respond to the complaint (respondent default) automatically result in the complainant being granted the requested remedy?. . .
Consensus view: A respondent’s default does not automatically result in a decision in favor of the complainant. Subject to the principles described in paragraph 2.1 above with regard to the second UDRP element, the complainant must establish each of the three elements required by paragraph 4(a) of the UDRP. Although a panel may draw appropriate inferences from a respondent’s default (e.g., to regard factual allegations which are not inherently implausible as being true), paragraph 4 of the UDRP requires the complainant to support its assertions with actual evidence in order to succeed in a UDRP proceeding. There are many examples of cases (typically involving complaints based on wholly unsupported assertions or mere conclusory statements) to which there has been no response where (not withstanding such respondent default) the decision has nonetheless gone in favor of the respondent on grounds that the complainant has failed to prove its case.”
A. Identical or Confusingly Similar
The Complainants furnished evidence of their ownership of the above trademark registrations and their substantial goodwill established in the company name and trademark TRACTOR SUPPLY COMPANY through over seventy (70) years of use in commerce.
The disputed domain name is almost identical to the Complainants’ trademark, the only difference being one letter which does not alter it to any significant extent either visually or aurally.
In the circumstances the disputed domain name is confusingly similar to the trademark TRACTOR SUPPLY COMPANY in which the Complainants have rights.
The Complainants have therefore succeeded in the first element of the test in paragraph 4(a) of the Policy.
B. Rights or Legitimate Interests
Addressing the onus of proof for the second element of the test in paragaph 4(a) of the Policy, the WIPO Overview 2.0, paragraph 2.1 notes that:
“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, the burden of production shifts to the respondent to come forward with appropriate allegations or evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such appropriate allegations or evidence, a complainant is generally deemed to have satisfied paragraph 4(a)(ii) of the UDRP. . . If the respondent does come forward with some allegations or evidence of relevant rights or legitimate interest[s], the panel then weighs all the evidence, with the burden of proof always remaining on the complainant.”
In the present case, the Complainants have argued that the Respondent has no rights or legitimate interests in the disputed domain name arguing principally that the Complainants are the owners of the TRACTOR SUPPLY COMPANY trademark, that there is no connection between the Respondent and the Complainants, that the disputed domain name is confusingly similar to the Complainants’ trademark, that the Respondent has not been given any rights to register the disputed domain name and that the Respondent, which is putting the disputed domain name to a commercial use is not commonly known by the disputed domain name.
This Panel finds that the Complainants have therefore made out a prima facie case and in line with the consensus view taken by other panels established under the Policy this Panel finds that the burden of demonstrating rights or legitimate interests in the disputed domain name shifts to the Respondent. The Respondent has not filed any Response.
Notwithstanding the failure or refusal of the Respondent to submit a Response, in testing the Complainants’ arguments this Panel has considered two particular aspects of this case namely the fact that the Respondent appears to be using the disputed domain name as the address for a parking page generating pay-per-click revenue and the descriptive character of the trademarks relied upon by the Complainants.
This Panel finds that in the circumstances of this case the Respondent has not acquired rights or legitimate interests in the disputed domain name by using it as the address for a parking page on a website apparently generating pay-per-click revenue. Again the WIPO Overview 2.0, paragraph 2.6 is of assistance as it specifically addresses the question as to whether parking and landing pages or pay-per-click links generate rights or legitimate interests in the disputed domain name and notes:-
“Panels have generally recognized that use of a domain name to post parking and landing pages or PPC links may be permissible in some circumstances, but would not of itself confer rights or legitimate interests arising from a ‘bona fide offering of goods or services’ . . . or from ‘legitimate noncommercial or fair use’ of the domain name, especially where resulting in a connection to goods or services competitive with those of the rights holder. As an example of such permissible use, where domain names consisting of dictionary or common words or phrases support posted PPC links genuinely related to the generic meaning of the domain name at issue, this may be permissible and indeed consistent with recognized sources of rights or legitimate interests under the UDRP, provided there is no capitalization on trademark value (a result that PPC page operators can achieve by suppressing PPC advertising related to the trademark value of the word or phrase). By contrast, where such links are based on trademark value, UDRP panels have tended to consider such practices generally as unfair use resulting in misleading diversion.”
This Panel finds that on the evidence before this Panel, in the circumstances of the present case, the Respondent has not acquired rights or legitimate interests in the disputed domain name by its use as the address of a parking page.
A more difficult question relates to the particular character of the trademark relied upon by the Complainants. The mark TRACTOR SUPPLY COMPANY consists of English language dictionary words and, one may argue, inherently lacks any distinctive character when used as a trademark for the supply of tractors. The rights relied upon by the Complainant have been acquired over a seventy year period of extensive use in commerce in the United States. Such rights do not necessarily extend to Australia or the Virgin Islands, the United Kingdom where the Respondent is based or elsewhere in the world where there are many companies supplying tractors and may wish to describe themselves as such. The WIPO Overview 2.0 is once again of assistance on this point and states:
“2.2 Does a respondent automatically have rights or legitimate interests in a domain name comprised of a dictionary word(s)?. . .
Consensus view: If the complainant makes a prima facie case that the respondent has no rights or legitimate interests, and the respondent fails to show one of the three circumstances under paragraph 4(c) of the UDRP, or any other basis for rights or legitimate interests, then the respondent may lack a legitimate interest in the domain name, even if it is a domain name comprised of a dictionary word or phrase. Factors a panel tends to look for when assessing whether there may be rights or legitimate interests would include the status and fame of the trademark, whether the respondent has registered other domain names containing dictionary words or phrases, and whether the domain name is used in connection with a purpose relating to its generic or descriptive meaning (e.g., a respondent may well have a right to a domain name ‘apple’ if it uses it for a genuine site for apples but not if the site is aimed at selling computers or MP3 players, for example, or an inappropriate other purpose). Panels have recognized that mere registration of a domain name, even one that is comprised of a confirmed dictionary word or phrase (which may be generic with respect to certain goods or services), may not of itself confer rights or legitimate interests in the domain name. Normally, in order to find rights or legitimate interests in a domain name based on the generic or dictionary meaning of a word or phrase contained therein, the domain name would need to be genuinely used or at least demonstrably intended for such use in connection with the relied-upon meaning (and not, for example, to trade off third-party rights in such word or phrase).”
As to the status of the mark, in the present case the Complainants have seventy (70) year old, a USD 3 billion retail business with an Internet presence since 1999. While the mark may not be distinctive when applied to the sale and supply of tractors the Complainants has adapted the words “tractor supply company” for a wide variety of goods. In their Annual Report filed by the second named Complainant pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 for the fiscal year ended December 26, 2009 the Complainants report that their business activities are in the following areas Livestock and Pet (39%), Hardware and Seasonal (23%) Truck and Tool 8% Clothing and Footware (10%, Agriculture (6%) and Gift and Recreation (4%). While the file records a number of other trademarks used by the Complainants, the trademark relied upon in this proceeding is also the company name.
Finally, the Respondent is not using the disputed domain name in connection with a purpose relating to its generic or descriptive meaning (such as using “apple” for a genuine site for apples as in the example cited in the WIPO Overview 2.0)
In the circumstances this Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad Faith
As to the question of bad faith registration and use: the disputed domain name was registered very recently on January 25, 2011; the Complainants have been using the trademark TRACTOR SUPPLY COMPANY for over 70 years; and the Complainants have had an Internet presence for their online retail sales at the “www.tractorsupply.com” web site since 1999. On the balance of probabilities the Respondent must have been aware of the Complainants’ rights and goodwill in the TRACTOR SUPPLY COMPANY mark and its “www.tractorsupply.com” website when it registered the disputed domain name.
In the view of this Panel by choosing to replace the letter “a” with the letter “e” the Respondent has demonstrated that it intended to attract Internet users who misspelled the words. This is indicative of an intention to engage in typosquatting as alleged by the Complainants. While using a proxy or privacy service does not in itself indicate bad faith registration of a domain name, in the present proceeding it adds to the weight of evidence against the Respondent.
In the absence of a Response or other explanation this Panel is satisfied on the balance of probabilities that the Respondent has registered the disputed domain name in order to take predatory advantage of the Complainants’ goodwill and reputation on the Internet. This Panel finds therefore that on the balance of probabilities the Respondent has intentionally attempted to attract for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainants’ TRACTOR SUPPLY COMPANY name and trademark as to the source, sponsorship, affiliation or endorsement of the Respondent’s website or of a product or service on the website.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <tractorsupplycompeny.com> be transferred to the Complainants.
Dated: May 16, 2011