InCube, Incorporated v. Arie Schinnar
Claim Number: FA0708001054980
Complainant is InCube, Incorporated (“Complainant”), represented by Andrew
Farquharson, of InCube, Incorporated, 1390 Willow Road,
Menlo Park, CA 94025. Respondent
is Arie Schinnar
(“Respondent”), Wharton 3020 SHDH,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <incube.com>, registered with Register.com, Inc.
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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On August 14, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 4, 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 email@example.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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 National Arbitration 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 assertions:
1. Respondent’s <incube.com> domain name is identical to Complainant’s INCUBE mark.
2. Respondent does not have any rights or legitimate interests in the <incube.com> domain name.
3. Respondent registered and used the <incube.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, InCube Incorporated, was formed in 1995 and
comprises a commercially active medical device laboratory and venture fund
providing a range of services and financing to emerging and start-up
companies. According to the undisputed
record, Complainant is regarded as one of
Respondent registered the <incube.com>
domain name on
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 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. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Paragraph 4(a) of the Policy requires that 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.
Complainant is not required to own a trademark application
to establish rights in the INCUBE mark under Policy ¶ 4(a)(i). See
The Panel finds that Complainant has established common law
rights in the INCUBE mark through continuous and extensive use of the mark in
connection with its medical device laboratory and venture fund since 1995. Complainant is well known in the medical
community for a number of breakthroughs in medical procedures and devices. Therefore, Complainant’s INCUBE mark has
acquired secondary meaning sufficient to establish common law rights in the
mark under Policy ¶ 4(a)(i). See
Tuxedos By Rose v. Nunez, FA 95248 (Nat. Arb.
Furthermore, the disputed domain name, <incube.com>, is identical to
Complainant’s INCUBE mark, as it incorporates the mark in its entirety. The disputed domain name differs from the
mark only in that it adds the generic top-level domain (“gTLD”) “.com” onto the
end of the mark. However, as a top-level
domain is required of all domain names, the addition of a gTLD to Complainant’s
mark is irrelevant under the Policy.
Thus, the Panel finds that the <incube.com> domain name is identical to
Complainant’s INCUBE mark, pursuant to Policy ¶ 4(a)(i). See Gardline Surveys Ltd. v. Domain Fin. Ltd., FA 153545 (Nat.
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent lacks rights and legitimate interests in the <incube.com> domain name. Under Policy ¶ 4(a)(ii), Complainant has the initial burden of proving this allegation. However, once Complainant has made a prima facie case, the burden shifts to Respondent to show that it does have rights or legitimate interests in the disputed domain name. The Panel finds that Complainant has made a prima facie case under the Policy. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that, where the complainant has asserted that the respondent has no rights or legitimate interests with respect to the domain name, it is incumbent on the respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”).
Respondent’s failure to answer the Complainant allows the Panel to presume that Respondent lacks rights and legitimate interests in the disputed domain name. See American Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002) (“[B]ased on Respondent's failure to respond, it is presumed that Respondent lacks all rights and legitimate interests in the disputed domain name.”); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“Given Respondent’s failure to submit a substantive answer in a timely fashion, the Panel accepts as true all of the allegations of the complaint.”). Nevertheless, the Panel will still examine the record to determine if Respondent has rights or legitimate interests under Policy ¶ 4(c).
Nothing in the evidence, including the WHOIS information, suggests that Respondent is commonly known by the <incube.com> domain name. According to Complainant, Respondent is not authorized to use the INCUBE mark. Therefore, the Panel finds that Respondent is not commonly known by the <incube.com> domain name pursuant to Policy ¶ 4(c)(ii). See Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding no rights or legitimate interests where (1) the respondent is not a licensee of the complainant; (2) the complainant’s prior rights in the domain name precede the respondent’s registration; (3) the respondent is not commonly known by the domain name in question).
According to the evidence, the
disputed domain name resolves to a website that has no active use. The Panel concludes that there is no bona fide offering of goods and services
under Policy ¶ 4(c)(i) or legitimate noncommercial or
fair use under Policy ¶ 4(c)(iii) where Respondent has failed to actively use a
disputed domain name and where no evidence has been provided showing
demonstrable preparations for use of the disputed domain name. See
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent’s registration and failure to make active use of the <incube.com> domain name along with a failure to provide evidence showing preparations to use the disputed domain name is representative of bad faith registration and use under Policy ¶ 4(a)(iii). See Caravan Club v. Mrgsale, FA 95314 (Nat. Arb. Forum Aug. 30, 2000) (finding that the respondent made no use of the domain name or website that connects with the domain name, and that passive holding of a domain name permits an inference of registration and use in bad faith); see also Mondich v. Brown, D2000-0004 (WIPO Feb. 16, 2000) (holding that the respondent’s failure to develop its website in a two-year period raises the inference of registration in bad faith).
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <incube.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: September 25, 2007
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page
National Arbitration Forum