Farhad Parsie v. Whois Guard Protected c/o Bao Shui
Chen
Claim Number: FA0707001042478
PARTIES
Complainant is Farhad Parsie (“Complainant”). Respondent is Whois Guard Protected c/o Bao Shui
Chen (“Respondent”),
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <vievie.com>, registered with Europe
Domains LLC.
PANEL
The undersigned certifies that he has acted independently and
impartially and to the best of his knowledge has no known conflict in serving
as Panelist in this proceeding.
Mark McCormick as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
electronically on July 18, 2007; the
National Arbitration Forum received a hard copy of the Complaint on July 25, 2007.
On July 20, 2007, Europe Domains LLC confirmed by e-mail to the
National Arbitration Forum that the <vievie.com> domain name is
registered with Europe Domains LLC and
that the Respondent is the current registrant of the name. Europe Domains
LLC has verified that Respondent is bound by the Europe Domains LLC 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 July 31, 2007, a Notification
of Complaint and Commencement of Administrative Proceeding (the “Commencement
Notification”), setting a deadline of August 20, 2007 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 postmaster@vievie.com by e-mail.
A timely Response was received and determined to be complete on August 20, 2007.
On August 22, 2007, Complainant filed an additional submission. On August 24, 2007, Respondent filed an
additional submission. Complainant
corresponded with the Forum on August 25, 2007, Respondent replied on August
30, 2007 and Complainant wrote again on August 31, 2007.
On August 24, 2007, pursuant to Complainant’s
request to have the dispute decided by a single-member Panel, the National
Arbitration Forum appointed Mark McCormick as Panelist.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
Complainant contends he established rights in the VIEVIE mark by a
United States Patent and Trademark Office (USPTO) registration on April 10,
2007. He also contends he has used the
name since 1999. He asserts that
Respondent’s disputed domain name <vievie.com> is identical or
confusingly similar. He alleges that
Respondent has no rights or legitimate interests in the domain name and
registered it in bad faith.
B. Respondent
Respondent concedes that the disputed domain name is identical or
confusingly similar to Complainant’s mark.
Respondent alleges the domain name was registered in 2004 for the sale
of pottery. On that basis, Respondent
also denies the registration was in bad faith or for the purpose of disrupting Complainant’s
business.
C. Additional Submissions
In his additional submission, Complainant attached letters showing
communications to Respondent urging Respondent to cease using the <vievie.com>
domain name and showing Respondent’s reply asserting the trademark was not
registered in China where Respondent is located and stating, “If you want the
domain BUY IT. $900.” Complainant asserts the trademarked name is
protected in
In his additional submission, Respondent contends the domain name is
used for the sale of pottery, which does not infringe Complainant’s trademark
protecting use of the name in the sale of clothing.
In subsequent correspondence, Complainant states the pottery company
let its domain name registration expire and Respondent registered the domain
name and resisted the Complaint under a false pretense of using the domain name
for sale of pottery. Respondent replied
that it is in the business of acquiring domains, parking and selling them and
that the former use of the <vievie.com> domain in sale of
pottery gives it value.
FINDINGS
Complainant has used the name VIEVIE in his
business since 1999, registering the name for his clothing business with the
USPTO in April 2007. A pottery company
had registered the <vievie.com> domain name in 2004 and
did not renew it when it expired in March 2007.
Respondent registered it and is holding it for sale. Respondent is in the business of acquiring
domain names, parking and selling them.
When Complainant asked Respondent to abandon the disputed domain name,
Respondent refused to do so but offered to sell it to Complainant for $900.
DISCUSSION
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) 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.
Respondent admits that the <vievie.com>
domain name is confusingly similar to Complainant’s VIEVIE mark. The domain name is identical to Complainant’s
mark within the meaning of Policy ¶ 4(a)(i). See Rollerblade,
Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000).
The burden is on Respondent to show he has
rights or legitimate interests in the domain name pursuant to Policy ¶ 4(a)(ii). See Do The Hustle, LLC
v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000). Respondent does not use or plan to use the
domain name for a bona fide offering
of goods or services. No credible
evidence exists that Respondent is commonly known by the disputed domain
name. Respondent is not making a
legitimate noncommercial or fair use of the domain name. Respondent does not have any rights or
legitimate interests in the domain name pursuant to Policy ¶ 4(a)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum
Feb. 10, 2003).
When Complainant contacted Respondent asking
Respondent to give up the disputed domain name, Respondent refused but told
Complainant he could buy it for $900.
Respondent admits he is in the business of buying domain names and parks
and sells them. He is not in the
business of selling pottery or other goods or services with the <vievie.com>
domain name. The $900 purchase price
plainly exceeded Respondent’s out-of-pocket costs. This is evidence of bad faith. The purchase price obviously was designed to
take advantage of Complainant’s concern that Respondent would use the domain
name to interfere with Complainant’s business.
This is sufficient to establish Respondent’s bad faith registration and
use of the domain name within the meaning of Policy 4(a)(iii). See Am.
Online, Inc. v. Prijic, FA 112639 (Nat. Arb. Forum June 27, 2002).
DECISION
Having established all three elements required under the ICANN Policy,
the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <vievie.com> domain name be TRANSFERRED
from Respondent to Complainant.
Mark McCormick, Panelist
Dated: September
7, 2007
Click Here to return
to the main Domain Decisions Page.
Click Here to return
to our Home Page
National
Arbitration Forum