Next Printing and Design, Inc. dba 212Postcards v. Craig Singer aka GoCARD aka Postcard.com, Inc.
Claim Number: FA0201000103985
Complainant is Next Printing and Design, Inc. dba 212Postcards, New York, NY (“Complainant”) represented by Stephen M. Harnik, of Harnik & Finkelstein. Respondent is Craig Singer, Sunrise, FL (“Respondent”).
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <212postcard.com>, and <212postcards.com> registered with Tucows, Inc.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge, has no known conflict in serving as Panelist in this proceeding.
Sandra Franklin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on January 22, 2002; the Forum received a hard copy of the Complaint on January 22, 2002.
On January 29, 2002, Tucows, Inc. confirmed by e-mail to the Forum that the domain names <212postcard.com>, and <212postcards.com> are registered with Tucows, Inc. and that Respondent is the current registrant of the names. Tucows, Inc. has verified that Respondent is bound by the Tucows, 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 31, 2002, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of February 20, 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 firstname.lastname@example.org and 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 25, 2002 pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed Sandra Franklin 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 names be transferred from Respondent to Complainant.
Respondent’s <212postcards.com> and <212postcard.com> domain names are identical and confusingly similar to Complainant’s 212 POSTCARDS mark.
Respondent does not have rights or legitimate interests in the disputed domain names.
Respondent registered and used the disputed domain names in bad faith.
No Response was submitted.
Complainant has been doing business under the 212POSTCARDS name since December 1999, and uses the convenient telephone number 212-POSTCAR(DS), which has become synonymous with its business.
Respondent registered the disputed domain names with Tucows, Inc. on November 21, 2000. Respondent is a direct competitor of Complainant and was aware of Complainant’s business at the time of registration. Moreover, Respondent has a history of registering domain names that are confusingly similar to the marks of competing postcard businesses.
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 the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(2) the 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 and/or Confusingly Similar
Complainant has common law rights in the 212 POSTCARDS mark due to its extensive use of the mark and the subsequent secondary meaning that it has developed amongst the public.
Accordingly, the Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Rights or Legitimate Interests
Accordingly, the Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Registration and Use in Bad Faith
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 <212postcards.com> and <212postcard.com> domain names be transferred from Respondent to Complainant.
Sandra Franklin, Panelist
Dated: March 6, 2002
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