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WIPO Arbitration and Mediation Center

The Complainant in this proceeding is Del Monte Corporation, of San Francisco, California, U.S.A. (Del Monte).

The Respondent in this proceeding is David Crumpacker, of White Salmon, Washington, U.S.A. (Mr. Crumpacker).

The domain name involved in this proceeding is ORCHARDSELECT.COM.

The domain name registrar with whom the contested domain name was registered is Network Solutions, Inc., of Herndon, Virginia, U.S.A. (NSI).

On or about May 23, 2000, Del Monte’s Complaint (the Complaint) was submitted for decision in accordance with the Uniform Policy for Domain Name Dispute Resolution, adopted by the Internet Corporation for Assigned Names and Numbers (ICANN) on August 26, 1999, (the Policy), the Rules for Uniform Domain Name Dispute Resolution Policy, approved by ICANN on October 24, 1999, (the Rules) and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the Supplemental Rules). See Rules, Para. 3(b).

Del Monte’s Complaint was received by the WIPO Arbitration and Mediation Center (the Center) on May 25, 2000. The Center acknowledged receipt of Del Monte’s Complaint on May 29, 2000. Also on May 29, the Center notified Del Monte that its Complaint was not submitted in electronic format as required by the Rules (paragraph 3(b)). This defect subsequently was cured. It appears that Del Monte made proper payment of the administrative fee, and that the Center did not note any other failure to comply with formal filing requirements.

On May 29, 2000, the Center notified the registrar, NSI, that Del Monte had filed its Complaint with the Center, and requested that NSI verify certain details regarding Del Monte’s Complaint, and the registration and current status of the contested domain name. On May 30, 2000, NSI notified the Center (i) that NSI received Del Monte’s Complaint, (ii) that NSI is the Registrar for the contested domain name, (iii) that Mr. Crumpacker is the current registrant of the ORCHARDSELECT.COM domain name registration, (iv) of Mr. Crumpacker’s contact details, (v) that the Policy applies to the contested domain name through application of NSI’s 4.0 Service Agreement in effect, and (vi) that the domain name registration ORCHARDSELECT.COM is in "active" status.

On June 1, 2000, Mr. Crumpacker was properly notified of the filing of Del Monte’s Complaint in accordance with the Rules, paragraph 2(a). Mr. Crumpacker was given until June 20, 2000, to file a Response.

It appears that Mr. Crumpacker’s Response was sent to and received by the Center in electronic form on June 19, 2000. A paper copy of the Response was received by the Center on June 21, 2000. The Panel deems Mr. Crumpacker’s Response to have been timely filed.

Both Del Monte and Mr. Crumpacker elected to have this proceeding decided by a single member panel. On June 23, 2000, the Center contacted the undersigned to solicit interest in being the sole panelist who would decide this matter. After investigating and clearing potential conflicts of interest, the undersigned notified the Center on June 26, 2000, of the ability and availability to serve as the sole panelist for this matter. On that date, the undersigned submitted to the Center a Statement of Acceptance and Declaration of Impartiality and Independence. Thus, the administrative panel for this proceeding was properly constituted.

On June 28, 2000, the Center forwarded to the undersigned the case file for this proceeding. After an initial reading of the case file, the Panel determined that submissions from both parties were inadequate for a proper decision to be rendered in this matter. On June 29, 2000, the Panel forwarded to the Center, and on June 30, 2000, the Center forwarded to the parties, and Interim Order, requesting further submissions by July 6, 2000, specifically:

(i) Evidence and documents supporting Del Monte’s use of the trademark in which it asserts it has rights since 1993;

(ii) Evidence and documents concerning Mr. Crumpacker’s legitimate interest in the disputed domain name, including plans/consultations to prepare to sell goods over the Internet under the contested domain name; and

(iii) Evidence concerning the web site connected to the disputed domain name (or acknowledgement that the Panel could review the same independently).

In response to the Panel’s Interim Order, Del Monte provided further submissions to the Center on July 3, 2000. Mr. Crumpacker did not provide any additional submissions.

On July 10, 2000, the Center mailed to the Panel (i) Del Monte’s further submissions and (ii) a copy of the Panel’s Interim Order in the form that it was sent to the parties. Unfortunately, that package never arrived at the offices of the undersigned. On July 24, 2000, the Center sent additional copies of these materials to the Panel, which arrived at the offices of the undersigned on July 25, 2000. The Panel’s decision below is based upon a reading and consideration of the parties’ original submissions and Del Monte’s supplemental submissions. The delay in the issuance of this decision is regretted.

Complainant’s Assertions

According to the WhoIs search record submitted with Del Monte’s Complaint, and verified by NSI, Mr. Crumpacker registered the contested domain name, ORCHARDSELECT.COM with NSI on April 21, 1999. (Complaint, Exhibit A).

Del Monte claims ownership and use of the trademark ORCHARD SELECT. According to a printout from the Thomson & Thomson SAEGIS database submitted with Del Monte’s Complaint, the ORCHARD SELECT trademark has been registered with the U.S. Patent and Trademark Office since October 31, 1995. (Complaint, Exhibit B). The database printout states that Del Monte first used the mark on May 24, 1993.

Del Monte asserts that it has been using the mark ORCHARD SELECT since 1993; that the mark is used on Del Monte’s premium line of fruit packed in glass jars; that the ORCHARD SELECT premium line of fruit is sold in the produce section of grocery stores and supermarkets nationally (i.e., within the United States); that in 1999, alone sales of product under the ORCHARD SELECT mark equaled approximately 844,000 cases with revenues of approximately $19,630,000; that products marketed under the ORCHARD SELECT mark are widely advertised including in print media.

The supplemental materials Del Monte supplied to the panel include numerous examples of: product labels, channel strips intended for placement on store shelves, redeemable and in-store coupons, recipe cards, free standing magazine inserts, promotional neck hangers, promotional magnets, consumer informational materials, stationery, print advertising, display rack information, ad slicks for use in store advertising, and various sales materials — all bearing the Orchard Select mark.

On February 10, 2000, Del Monte’s counsel sent a letter to Mr. Crumpacker informing him that ORCHARD SELECT was a federally registered trademark of Del Monte, and requesting Mr. Crumpacker contact Del Monte’s counsel to reach an amicable solution (Complaint, Exhibit D).

On February 15, 2000, Del Monte’s counsel received a letter from Mr. Crumpacker, offering to sell the domain name orchardselect.com to Del Monte for $5000.00 (U.S.). (Complaint, Exhibit E). The panel notes from Mr. Crumpacker’s correspondence that he is an attorney and claims to be an orchard owner.

On March 3, 2000, Del Monte’s counsel sent a letter to Mr. Crumpacker reiterating Del Monte’s position as owner of the ORCHARD SELECT trademark, and explaining why Mr. Crumpacker would not be permitted to use the trademark as his domain name over Del Monte’s objections. Del Monte offered to purchase the contested domain name for the $70.00 (U.S.), corresponding to the domain name registration fee paid by Mr Crumpacker (Complaint, Exhibit F).

On April 10, 2000, Mr. Crumpacker responded to Del Monte’s March 3, 2000, letter, stating that he believed he had priority over Del Monte because he registered the domain name first. Mr. Crumpacker reiterated his offer to sell the domain name to Del Monte for $5000.00 (U.S.) (Complaint, Exhibit G).

Respondent’s Assertions

Mr. Crumpacker asserts that he registered the domain name orchardselect.com in connection with a business plan to sell fresh fruit over the Internet. He claims ownership of a commercial cherry and apple orchard in White Salmon, Washington, U.S.A. Because the return to growers for their fruit has become so low, it is difficult to survive economically simply by selling to the local packinghouses. Therefore, for over a year, Mr. Crumpacker asserts that he has been planning to establish a market for his fresh fruit over the Internet. He claims to have consulted with various experts in the area of Internet sales, and to have been arranging for other local orchardists to sell their fruit through Mr. Crumpacker’s web site. One of the first steps Mr. Crumpacker claims to have taken when he conceived this idea was to select the name orchardselect.com for his website. Respondent claims to have proceeded with his planning based on the use of this name.

Mr. Crumpacker claims to have had no knowledge that Del Monte had a registered trademark in the name Orchard Select. Mr. Crumpacker also states that he had no knowledge that any other entity had used the trademark Orchard Select at the time he registered this name as a domain name. Mr. Crumpacker asserts that he learned of Del Monte’s claim of ownership from Del Monte’s counsel when he received their correspondence (Complaint, Exhibit D). Mr. Crumpacker claims to have registered the name orchardselect.com solely to permit him to proceed with his business plan to sell his fresh fruit over the Internet.

Mr. Crumpacker asserts that he did not register the domain name for the purpose of selling, renting or otherwise transferring the domain name to Del Monte as the alleged owner of the trademark, or to a competitor of Del Monte, that he has never attempted to sell nor has he sold any other domain name to anyone, that he never registered the domain name with the intent to sell it for profit, and that he has no intention of competing with Del Monte. Mr. Crumpacker intends only to sell its fresh fruit over the Internet, a business in which, so far as Mr. Crumpacker is aware, Del Monte is not engaged.

Mr. Crumpacker claims that he did not register the contested domain name in order to prevent Del Monte from reflecting the Orchard Select mark in a corresponding domain name, that he had no knowledge that Del Monte owned a similar trademark, that he and Del Monte are not competitors, that he did not register the domain name to disrupt Del Monte’s business, that he had no knowledge of Del Monte’s business, that he did not register the domain name as an intentional attempt to attract for commercial gain, Internet users to Mr. Crumpacker’s web-site by creating a likelihood of confusion with Del Monte’s mark as to the source, sponsorship, affiliation or endorsement of the Mr. Crumpacker’s web site or location or of a product or service on the Mr. Crumpacker’s web site.

Before Mr. Crumpacker received any notice of the dispute, Mr. Crumpacker claims to have made preparations to use the domain name in connection with a bona fide offering of goods, i.e. the sale of fresh fruit. Mr. Crumpacker claims to be known, to those with whom he has consulted concerning his business, as "orchardselect.com."

Mr. Crumpacker acknowledges receipt of correspondence from Del Monte offering to discuss an amicable resolution of this dispute. Only in response to this overture did Mr. Crumpacker offer to sell the name to Del Monte for a figure which Mr. Crumpacker felt would compensate him for the trouble and time it would take to select and revise his business plan with a new name. Mr. Crumpacker also acknowledges receipt of Del Monte’s offer to pay the $70.00 (U.S.), which was the registration fee for Mr. Crumpacker’s registration of the contested domain name. Mr. Crumpacker claims that this figure will not compensate him for the inconvenience a change in his domain name will entail.

A. Complainant

Del Monte asserts that the ORCHARDSELECT.COM domain name is identical or confusingly similar to the ORCHARD SELECT trademark in which Del Monte has rights; that Mr. Crumpacker has no rights or legitimate interests in respect of the domain name; and that Mr. Crumpacker registered and is using the contested domain name in bad faith.

Del Monte further asserts that the exclusivity of the ORCHARD SELECT trademark is protected under United States law; that when Mr. Crumpacker registered the domain name orchardselect.com, he knew or should have known of the existence of the ORCHARD SELECT trademark.

Del Monte requests that, under the Policy and Rules, the contested domain name be transferred to it.

B. Respondent

Mr. Crumpacker asserts that he has the right to and a legitimate interest in the ORCHARDSELECT.COM domain name, and that Del Monte has not met its burden of establishing that Mr. Crumpacker has no such right.

Mr. Crumpacker claims he is currently making a legitimate non-commercial and fair use of the domain name, without intent for commercial gain misleadingly to divert consumer or to tarnish the trademark at issue.

Mr. Crumpacker states that he is not the type of cybersquatter which the domain decisions have previously punished, as he has never registered any domain name with the intention of selling the name.

Mr. Crumpacker requests that the Panel deny the relief requested by Del Monte.

The Policy is applicable, and transfer or cancellation of a contested domain name will be ordered, if the following three elements are present:

(i) the contested domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and

(ii) the domain name registrant has no rights or legitimate interests in respect of the domain name; and

(iii) the contested domain name has been registered and is being used in bad faith.

In an administrative proceeding pursuant to the Policy, Rules and Supplemental Rules, the Complainant must prove that each of these three elements is present. Policy, Para. 4(a).

The following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:

(i) circumstances indicating that the registrant 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 complainant, for valuable consideration in excess of the registrant’s documented out-of-pocket costs directly related to the domain name; or

(ii) the registrant 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 it is shown that the registrant has engaged in a pattern of such conduct; or

(iii) the registrant registered the domain name primarily for the purpose of disrupting the business of a competitor; or

(iv) by using the domain name, the registrant has intentionally attempted to attract, for commercial gain, Internet users to his web site 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 registrant’s web site or location or of a product or service on his web site or location.

Policy, Para. 4(b).

On the other hand, any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate the registrant’s rights or legitimate interests to the domain name:

(i) before any notice to the registrant of the dispute, his 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) the registrant (as an individual, business, or other organization) have been commonly known by the domain name, even if the registrant has acquired no trademark or service mark rights; or

(iii) the registrant is 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.

Policy, Para. 4(c ).

The panel finds that the contested domain name, ORCHARDSELECT.COM is identical and/or confusingly similar to the ORCHARD SELECT trademark in which Del Monte has rights. As both parties are within the territorial jurisdiction covered by the U.S. Ninth Circuit Court of Appeals, the Panel shall apply the likelihood-of-confusion test for infringement set forth in AMF Inc. v. Sleekcraft Boats, 599 F.2d 341, 348 (9^th Cir. 1979).

The Panel finds that the ORCHARD SELECT mark is descriptive of the goods recited in Del Monte’s trademark registration, "processed fruits", but that the mark has acquired secondary meaning through considerable use in the marketplace. Were Mr. Crumpacker to go forward with his stated business plan, the proximity of the parties’ goods and marketing channels is manifest. Both parties would be selling fruit to the general public, who may or may not exercise a high degree of care when making purchases of these types of goods. Were both parties to sell their respective fruit products over the Internet (a natural area of expansion for Del Monte), consumer confusion would be likely. As stated, the Panel finds no distinguishable difference in appearance, sound, or commercial impression between the ORCHARDSELECT.COM domain name and Del Monte’s ORCHARD SELECT trademark, the ".com" suffix being nearly irrelevant for purposes of this analysis.

Although Del Monte has not come forward with any evidence of actual confusion between its ORCHARD SELECT mark in the contested domain name, such lack of proof is understandable. There is no evidence of record that Mr. Crumpacker has made any commercial use of the ORCHARDSELECT.COM domain name on the Internet, as to date the only web page associated with the contested domain name is NSI’s "under construction" page. Thus, there as yet has been no opportunity for the public to be confused; and in any event the test for infringement is likelihood of confusion and not actual confusion. The Panel discusses Mr. Crumpacker’s intent with respect to his registration and use of the domain name below.

The Panel also finds that Mr. Crumpacker has not demonstrated that he has any rights or legitimate interests in respect of the contested domain name. As stated above in the Factual Background section of this opinion, Mr. Crumpacker, in his Response, made a number of unsupported assertions regarding his planned use of the ORCHARDSELECT.COM domain name. Even when the Panel provided Mr. Crumpacker with an additional opportunity to supply documented support for these assertions, he gave none. The Panel can only conclude from this absence of documented proof that Mr. Crumpacker’s claims of purported plans to conduct a fruit sales business on the Internet under the ORCHARD SELECT name or ORCHARDSELECT.COM domain name are not credible.

Thus, before any notice to Mr. Crumpacker of this dispute, he neither made his use of, nor has he shown 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. Mr. Crumpacker has not shown proof that he, as an individual, business, or other organization, has been commonly known by the contested domain name. There also is no proof that Mr. Crumpacker has made a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers away from the business of Del Monte, as owner of the ORCHARD SELECT trademark. The absence of any documented proof from Mr. Crumpacker on any of these matters fairly permits the Panel to come to this conclusion. Medisite S.A. R.L. v. Intellisolve Limited (WIPO Case No. D2000-0179, May 19, 2000).

The Panel now must decide whether Mr. Crumpacker registered and used the ORCHARDSELECT.COM domain name in bad faith.

Not only is Mr. Crumpacker an attorney, but also (as asserted in his correspondence to Del Monte) claims to be an orchard owner and fruit seller. Being in the same business as Del Monte, the Panel finds it highly unlikely that Mr. Crumpacker had never heard of Del Monte’s use of the ORCHARD SELECT mark in connection with processed fruit at the time he registered the ORCHARDSELECT.COM domain name. Technology Properties, Inc. v. Burris, (NAF File No. 94424, May 9, 2000). In any event, Del Monte’s Federal registration of the ORCHARD SELECT mark since 1995, provides Mr. Crumpacker with constructive notice of Del Monte’s claim of ownership of the mark. U.S. Trademark Act, 15 U.S.C. § 1072; The Step2 Co. v. Softasticcom Corp. (WIPO Case No. D2000-393, June 26, 2000); Sports Car World, Inc. v. Cracknell, (NAF File No. 94448, May 31, 2000).

The Panel therefore finds that, at the very least, Mr. Crumpacker registered the ORCHARDSELECT.COM primarily for the purpose of disrupting the business of Del Monte, a competitor. The Panel also finds that Mr. Crumpacker has not made a legitimate noncommercial or fair use of the contested domain name, without intent for commercial gain to misleadingly divert consumers. Policy, paras. 4(b)(iii) and (iv); Phar-Mor, Inc. v. Epicenter Comms., Inc. (NAF File No. 94363, May 26, 2000). The Panel further finds that, were Mr. Crumpacker to go forward with his professed business plan, he would be infringing Del Monte’s trademark rights in the ORCHARD SELECT trademark.

Not only has Mr. Crumpacker failed to support his assertions of going forward with a legitimate business plan, he has not even provided evidence to show that he owns an orchard as he asserts. In the context of the absence of any evidence supporting Mr. Crumpacker’s alleged legitimate interest in, and preparations to use, the domain name, the Panel finds that Mr. Crumpacker registered the ORCHARDSELECT.COM domain name primarily for the purpose of selling or otherwise transferring the domain name registration to the Del Monte, the demonstrated owner of the ORCHARD SELECT trademark, for valuable consideration ($5,000.00 U.S.) in excess of Mr. Crumpacker’s out-of-pocket costs directly related to the domain name ($70.00).

The Panel therefore concludes that Mr. Crumpacker registered and used the ORCHARDSELECT.COM domain name in bad faith.

The Panel finds that Del Monte has met its burden of proof with respect to each of the elements required in paragraphs 4(a) (i) – (iii) of the Policy. The Panel also finds that Mr. Crumpacker has not shown that he has rights to or legitimate interests in the contested domain name, as recited in paragraphs 4(c ) (i) – (iii) of the Policy.

It is the decision of the Panel, therefore, that the contested ORCHARDSELECT.COM domain name be transferred to Complainant, Del Monte Corporation.

Jonathan Hudis
Single Panelist

Dated: August 21, 2000