PSC Management Limited Partnership v. Pruthul S
Claim Number: FA0708001065634
Complainant is PSC Management Limited Partnership (“Complainant”), represented by Cathryn
Berryman, of Winstead, P.C., 5401
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <perot-systems.com>, registered with Melbourne It, Ltd. d/b/a Internet Names Worldwide
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.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On September 5, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 25, 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 <perot-systems.com> domain name is confusingly similar to Complainant’s PEROT SYSTEMS mark.
2. Respondent does not have any rights or legitimate interests in the <perot-systems.com> domain name.
3. Respondent registered and used the <perot-systems.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant has continuously used the PEROT SYSTEMS mark in connection with computer-related services since 1998. Complainant currently holds registration of the PEROT SYSTEMS mark in numerous jurisdictions worldwide, including with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,106,634 issued October 21, 1997). Complainant operates much of its business through the <perotsystems.com> domain name.
domain name was registered 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 has sufficiently established pursuant to Policy ¶ 4(a)(i) its rights in the PEROT SYSTEMS mark through registration with the USPTO. See Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004) (“Registration of the NASAL-AIRE mark with the USPTO establishes Complainant's rights in the mark.”); see also Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which the respondent operates; therefore it is sufficient that the complainant can demonstrate a mark in some jurisdiction).
domain name contains Complainant’s PEROT SYSTEMS mark in its entirety,
substituting the space between “perot” and “systems” with a hyphen. It also includes the generic top-level domain
(“gTLD”) “.com.” Hyphens and gTLDs do
not distinguish a disputed domain name.
Therefore, pursuant to Policy ¶ 4(a)(i), the
Panel finds that Respondent’s disputed domain name is identical to Complainant’s
mark. See Isleworth
Land Co. v. Lost in Space, SA, FA 117330 (Nat. Arb. Forum
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(i).
Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name. See Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under certain circumstances, the mere assertion by the complainant that the respondent has no right or legitimate interest is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist). The Panel finds that Complainant has established a prima facie case against Respondent and accordingly the burden shifts to Respondent to establish that it does have rights or legitimate interests in the disputed domain name. See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent); see also Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that once the complainant asserts that the respondent has no rights or legitimate interests with respect to the domain, the burden shifts to the respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”).
Respondent has failed to submit a Response to the
Complainant. Accordingly, the Panel
presumes that Respondent has no rights or legitimate interests in the <perot-systems.com> domain name. Nevertheless, the Panel will still consider
all available evidence in consideration of the factors listed under Policy ¶
4(c). See G.D. Searle v. Martin
Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (Respondent’s
failure to respond means that Respondent has not presented any circumstances
that would promote its rights or legitimate interests in the subject domain
name under Policy ¶ 4(a)(ii).”); see also
Am. Express Co. v. Fang
Suhendro, FA 129120 (Nat. Arb. Forum
Nowhere in Respondent’s WHOIS information or elsewhere in the record does it indicate that Respondent is or ever has been commonly known by the <perot-systems.com> domain name. As a result, the Panel finds that Respondent is not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where the respondent was not commonly known by the mark and never applied for a license or permission from the complainant to use the trademarked name).
Respondent’s <perot-systems.com> domain name currently contains Complainant’s PEROT SYSTEMS mark in its entirety and resolves to a standard template for websites offered by Microsoft Office Live. The Panel finds that this is an inactive use of the disputed domain name. Accordingly, the Panel cannot find that Respondent is making a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or is using the disputed domain name is legitimate noncommercial or fair way pursuant to Policy ¶ 4(c)(iii). See Melbourne IT Ltd. v. Stafford, D2000-1167 (WIPO Oct. 16, 2000) (finding no rights or legitimate interests in the domain name where there is no proof that the respondent made preparations to use the domain name or one like it in connection with a bona fide offering of goods and services before notice of the domain name dispute, the domain name did not resolve to a website, and the respondent is not commonly known by the domain name); see also Ziegenfelder Co. v. VMH Enter., Inc., D2000-0039 (WIPO Mar. 14, 2000) (finding that failure to provide a product or service or develop the site demonstrates that the respondent had not established any rights or legitimate interests in the domain name).
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(ii).
It is not necessary for this Panel to exclusively use the
examples under Policy ¶ 4(b) to find bad faith.
See Do The Hustle, LLC v. Tropic Web,
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 <perot-systems.com> domain name be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: October 15, 2007
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