Union Telephone Company v. IdeaTrade - This Domain is For Sale -
Claim Number: FA0201000103816
Complainant is Michael Johnson Union Telephone Company, Mountain View, WY (“Complainant”). Respondent is IdeaTrade - This Domain is For Sale -, Montgomery, TX (“Respondent”).
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <unioncellular.com>, registered with Network Solutions, Inc.
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 January 11, 2002; the Forum received a hard copy of the Complaint on January 28, 2002.
On January 15, 2002, Network Solutions, Inc. confirmed by e-mail to the Forum that the domain name <unioncellular.com> is registered with Network Solutions, Inc. and that Respondent is the current registrant of the name. Network Solutions, Inc. has verified that Respondent is bound by the Network Solutions, Inc. 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 29, 2002, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of February 18, 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.
Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the Forum transmitted to the parties a Notification of Respondent Default.
On February 22, 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.
Having reviewed the communications records, the Administrative Panel (the “Panel”) finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) “to employ reasonably available means calculated to achieve actual notice to Respondent.” Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum’s Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any Response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following allegations:
Complainant has rights in a mark that is contained in a domain name registered by Respondent. Respondent’s <unioncellular.com> domain name is confusingly similar to Complainant’s UNION mark. Respondent has no rights to or legitimate interests in the disputed domain name. Respondent registered the disputed domain name in bad faith.
B. Respondent did not file a Response in this proceeding.
Complainant has provided cellular service in the Wyoming western region since 1990. Additionally, it owns the following domain name to advertise and promote its cellular telephone services: <unioncellular.net>, <unioncellular.org>, < unioncellular.tv>, <unioncellular.ws>, <unioncellular.cc>, < unioncellular.biz> and <unioncellular.info>.
Respondent registered the <unioncellular.com> domain name on September 27, 1999 and has subsequently used it as a website to provide pronographic and sexually explicit photographs and services.
Paragraph 15(a) of 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.”
In view of Respondent's failure to submit a Response, the Panel shall decide this administrative proceeding on the basis of the Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules.
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 Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(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.
Identical to and/or Confusingly Similar
Complainant asserts that it has established common law rights in the UNION name through its extensive advertisement and promotion on the Internet, as well as its offering of telephone services under the UNION name, including cellular telephone services, since 1990.
Accordingly, the Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Because Respondent did not file a Response in this proceeding, the Panel may conclude that Respondent has no rights or legitimate interests in the disputed domain name. See Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that Respondents’ failure to respond can be construed as an admission that they have no legitimate interest in the domain names).
Finally, Respondent does not have rights to or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)(iii) because Respondent makes use of a confusingly similar domain name as a website to advertise pornographic pictures and services. This is not a legitimate noncommercial or fair use. See Nat’l Football League Prop., Inc., v. One Sex Entm't. Co., D2000-0118 (WIPO Apr. 17, 2000) (finding that the Respondent has no rights or legitimate interests in the domain names <chargergirls.com> and <chargergirls.net> where the Respondent linked these domain names to its pornographic website); see also Brown & Bigelow, Inc. v. Rodela, FA 96466 (Nat. Arb. Forum Mar. 5, 2001) (finding that infringing on another's well-known mark to provide a link to a pornographic site is not a legitimate or fair use).
Accordingly, the Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant alleges that Respondent registered and used the disputed domain name in bad faith. Respondent’s use of the confusingly similar domain name supports a finding of bad faith here because Respondent linked the infringing domain name here to a pornographic site. See Brown & Bigelow, Inc. v. Rodela, FA 96466 (Nat. Arb. Forum Mar. 5, 2001) (use of another's well-known mark to provide a link to a pornographic site is evidence of bad faith registration and use).
Accordingly, the Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that the requested relief should be hereby granted.
Accordingly, it is Ordered that the <unioncellular.com> domain name be transferred from Respondent to Complainant.
Hon. Carolyn Marks Johnson, Panelist
Dated: March 8, 2002.
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