CMP Media LLC v. Klaus Nadler
Claim Number: FA0112000103453
Complainant is CMP Media LLC, Manhassett, NY (“Complainant”) represented by Sandra L. Grayson. Respondent is Klaus Nadler and NetEvent GmbH, Wetzlar, Hessen, Germany (“Respondent”).
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <netevent.biz>, registered with CORE.
The undersigned certifies that she has acted independently and impartially and that to the best of her knowledge she has no known conflict in serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum (“the Forum”) electronically on December 26, 2001; the Forum received a hard copy of the Complaint on December 26, 2001.
On January 2, 2002, CORE confirmed by e-mail to the Forum that the domain name <netevent.biz> is registered with CORE and that the Respondent is the current registrant of the name. CORE has verified that Respondent is bound by the CORE registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On January 7, 2002, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of January 28, 2002 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts, and to email@example.com by e-mail.
A timely Response was received and determined to be complete on January 28, 2002.
On February 18, 2002, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Carolyn Marks Johnson as Panelist.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following allegations:
Complainant has rights in the protected mark NETWORK COMPUTING. Respondent has registered a domain name that is identical to or confusingly similar to Complainant’s registered mark. Respondent has no rights to or legitimate interests in the mark contained within the domain name and Respondent registered and used the domain name in bad faith.
B. Respondent makes the following allegations:
Respondent filed a single-page letter in Response to the Complaint. Respondent states in this letter that NetEvent GmbH, Germany is a Limited Company, registered under German Laws in the city of Wetzlar and is currently rendering Internet services in that area with plans to expand to the European and international market. Respondent stated an interest in the domain name. Respondent suggested that “we believe that this case would need probably more time to clarify the various interests and to find possible solutions for the parties.” Neither party requested additional time or extension of any deadlines. Respondent did not otherwise addresss the issue of confusing similarity or bad faith.
The record before the Panel permits the following findings:
Complainant is a leading high-tech media company providing essential information and marketing services to the entire technology spectrum and to the healthcare industry. Its diverse products and services include newspapers, magazines, Internet products, research services, direct marketing services, education and training, trade shows and conferences, custom publishing, testing and consulting.
Complainant established in this proceeding that it owns the trademark NETWORK COMPUTING. Complainant holds Registration No. 2,038,266 from the United States Patent and Trademark Office in class 16 for publications and journals. In addition, Complainant has international trademark registrations for NETWORK COMPUTING in Argentina, Australia, Canada, Mexico, New Zealand, Hong Kong, Taiwan, Italy, South Africa, Russia, Spain, Finland, Bulgaria, Poland, Switzerland, Hungary, Czech Republic and Benelux.
Complainant further established in this proceeding that it owns the Trademark NetEvent under United States Registration No. 2,114,533 in class 35 for preparing live and rerecorded interactive business presentations using multimedia applications, which incorporate graphics, text, audio and video for use on a global computer information network. This trademark was first used in commerce December 10, 1996, and was registered March 17, 1998, by Marshall Industries, which in turn assigned it to Complainant.
Complainant and its predecessor used the trademark NetEvent in conjunction with providing business presentations via online services.
Complainant alleged but provided no extrinsic proof in support of the claim that Respondent registered NetEvent solely for “anti-competitive purposes or to attempt to sell it for a profit.”
The evidence is disputed as to whether Respondent has a claim of right to use of the NetEvent mark in Germany. Since Respondent did not provide proof to the contrary, the Panel takes as true Complainant’s allegations that Respondent does not have a registered trademark relative to NetEvent in Germany, where Respondent is located.
Respondent states in his letter that NetEvent GmbH, Germany is a Limited Company, registered under German Laws in the city of Wetzlar and is currently rendering Internet services in that area with plans to expand to the European and international market. Respondent did not support these claims with extrinsic proof.
While Respondent suggested “we believe that this case would need probably more time to clarify the various interests and to find possible solutions for the parties,” no party requested additional time or an extension of any deadline and Respondent did not otherwise address the required elements in the proceeding.
Paragraph 15(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) instructs this Panel to “decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.”
Paragraph 4(a) of the Policy requires that the Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
Respondent did not address the issue of similarity in its letter to the Panel. Respondent merely maintains that it has been doing business under the name of NetEvent GmbH, Germany, offering “services in the area of internet content, internet services, internet products [and]…services to basically all information and news platform[s] in the market.” One could argue that the terms "net" and "event" are generic and that therefore, Complainant should not have exclusive rights in NET EVENT or <netevent.biz> in Germany, where Respondent allegedly operates. See Successful Money Mgmt. Seminars, Inc. v. Direct Mail Express, FA 96457 (Nat. Arb. Forum Mar. 7, 2001) (finding that seminar and success are generic terms to which Complainant cannot maintain exclusive rights); see also Rollerblade, Inc. v. CBNO and Redican, D2000-0427 (WIPO Aug. 24, 2000) (finding that “genericness, if established, will defeat a claim of trademark rights, even in a mark which is the subject of an incontestable registration”). Here, however, Complainant certified that Klaus Nadler “does not have any interest in or trademark registration for the name. An online trademark search which CMP conducted does not show any registration by Klaus Nadler in Germany where it is located.” This allegation was easy for Respondent to refute with documentary proof of its interest in the NetEvent mark in German and Respondent did not do so.
The Panel finds that the domain name is confusingly similar to Complainant’s registered trademark and that Policy ¶ 4(a)(i) has been satisfied.
Complainant asserts that Respondent is commonly known as Klaus Nadler and not as NetEvent or <netevent.biz> and that, therefore, Respondent has no rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Broadcom Corp. v. Intellifone Corp., FA 96356 (Nat. Arb. Forum Feb. 5, 2001) (finding no rights or legitimate interests because Respondent is not commonly known by the disputed domain name or using the domain name in connection with a legitimate or fair use); see also CBS Broadcasting, Inc. v. LA-Twilight-Zone, D2000-0397 (WIPO June 19, 2000) (finding that Respondent has failed to demonstrate any rights or legitimate interests in the <twilight-zone.net> domain name since Complainant had been using the TWILIGHT ZONE mark since 1959).
Under the allegations and Respondent’s failure to bring forth proof to the contrary, the Panel further may find that Respondent seeks to intentionally divert Internet users to its website for its own commercial gain and is therefore not making legitimate noncommercial, or fair use of the disputed domain pursuant to Policy ¶ 4(c)(iii). See Kosmea Pty Ltd. v. Krpan, D2000-0948 (WIPO Oct. 3, 2000) (finding no rights in the domain name where Respondent has an intention to divert consumers of Complainant’s products to Respondent’s site by using Complainant’s mark); see also Vapor Blast Mfg. Co. v. R & S Tech., Inc., FA 96577 (Nat. Arb. Forum Feb. 27, 2001) (finding that Respondent’s commercial use of the domain name to confuse and divert Internet traffic is not a legitimate use of the domain name).
Further, under the allegations and Respondent’s failure to bring forth proof to the contrary, the Panel may find that Respondent has failed to develop a website at the domain name and that this failure demonstrates that Respondent has no intention of using the domain name for a legitimate purpose, and therefore has no rights or legitimate interests in the disputed domain name. See Bloomberg L.P. v. Sandhu, FA 96261 (Nat. Arb. Forum Feb. 12, 2001) (finding that no rights or legitimate interest can be found when Respondent fails to use disputed domain names in any way).
Respondent asserted in its letter to the Panel that “NetEvent is an Internet company which renders services in the area of internet content, internet services, Internet products [and]…services to basically all information and news platform in the market.”(sic) Respondent did not address its purpose in registering the disputed domain name but merely wrote about the alleged business operation of NetEvent GmbH, Germany. Even if the Panel accepts Respondent’s description as providing information about the purpose of the domain name, the disputed domain name’s description sets out terms for a future content of a website and a future area of Respondent's business. The Panel might find that Respondent is planning to use <netevent.biz> for a bona fide service pursuant to Policy ¶ 4(c)(i). See Canal & Image UK Ltd. v. VanityMail Serv., Inc., FA 94946 (Nat. Arb. Forum July 18, 2000) (finding that a draft of an unimplemented business plan was sufficient to show respondent’s legitimate interest in the domain name); see also Tough Traveler, Ltd. v. Kelty Pack, Inc, D2000-0783 (WIPO Sept. 28, 2000) (finding that Respondent had a legitimate interest in the domain name, <kidcarrier.com>, as a generic term for a class of products that Respondent sells); see also Sweeps Vacuum & Repair Ctr., Inc. v. Nett Corp., D2001-0031 (WIPO Apr. 13, 2001) (finding bona fide use of a generic domain name, <sweeps.com>, where Respondent used a legitimate locator service (goto.com) in connection with the domain name). But Respondent has offered no extrinsic proof to refute Complainant’s allegation that “Klaus Nadler has filed for the domain name in question solely for anti-competitive purposes or to attempt to sell it for a profit.”
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Registration and Use in Bad Faith
Complainant urges that Respondent registered a domain name containing Complainant’s protected trademark for the bad faith purposes of preventing Complainant from operating a domain name in its own name or to attempt to sell the name to Complainant for a profit. Respondent could have attempted to refute this allegation with objective or subjective proof but made no effort to address these elements. The Panel may find that the <netevent.biz> domain name is identical to Complainant's mark and further that an Internet user seeking to access Complainant’s business by its name will reach Respondent’s website and will likely believe that there is an affiliation between Respondent and Complainant. Registration of the <netevent.biz> domain name despite its identical nature to Complainant’s mark is evidence of bad faith pursuant to Policy ¶ 4(b)(iv). See Sony Kabushiki Kaisha v. Inja, Kil, D2000-1409 (WIPO Dec. 9, 2000) (finding that bad faith registration and use where it is “inconceivable that the respondent could make any active use of the disputed domain names without creating a false impression of association with the Complainant”).
The Panel finds that Policy ¶ 4(b)(iv) has been satisfied.
Having determined that all three required elements for transfer of a domain name have been satisfied, it is, accordingly, Ordered that the domain name <netevent.biz> is transferred from Respondent to Complainant.
Carolyn Marks Johnson, Panelist
Dated: March 4, 2002.
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