Aha! - Agentur Fur Handelsmarketing GMBH v. Continue Software GmbH
Claim Number: FA0204000109376
The Complainant is Aha! - Agentur fur Handelsmarketing GmbH, Koln, GERMANY (“Complainant”) represented by Dr. Bernard Skorpil. The Respondent is Continue Software GmbH, Wuerselen, GERMANY (“Respondent”).
The domain name at issue is <aha.biz>, registered with CORE.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge, has no known conflict in serving as Panelist in this proceeding.
Sandra Franklin as Panelist.
Complainant has standing to file a Start-up Trademark Opposition Policy (“STOP”) Complaint, as it timely filed the required Intellectual Property (IP) Claim Form with the Registry Operator, NeuLevel. As an IP Claimant, Complainant timely noted its intent to file a STOP Complaint against Respondent with the Registry Operator, NeuLevel and with the National Arbitration Forum (the “Forum”).
Complainant submitted a Complaint to the Forum electronically on April 9, 2002; the Forum received a hard copy of the Complaint on April 10, 2002.
On April 10, 2002, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of April 30, 2001 by which Respondent could file a Response to the Complaint, was transmitted to Respondent in compliance with paragraph 2(a) of the Rules for the Start-up Trademark Opposition Policy (the “STOP Rules”).
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 May 14, 2002, pursuant to STOP Rule 6(b), the Forum appointed Sandra Franklin as the single 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 STOP Rules. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the STOP Policy, STOP Rules, the Forum’s STOP Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any Response from Respondent.
Transfer of the domain name from Respondent to Complainant.
The <aha.biz> domain name is identical to Complainant's AHA! mark.
Respondent has no rights or legitimate interests in the <aha.biz> domain name.
Respondent registered the <aha.biz> domain name in bad faith.
Respondent failed to submit a Response.
Complainant began using the AHA! mark in the early 1990’s in relation to retail marketing. Complainant registered the mark with the court of the city of Cologne as Registration Number HRB Köln 24166 in 1993.
Respondent registered the disputed domain name on March 27, 2002. Complainant has presented evidence that Respondent has attempted to lease the domain name.
Paragraph 15(a) of the STOP 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 STOP Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the STOP Rules.
Paragraph 4(a) of the STOP Policy requires that the Complainant must prove each of the following three elements to obtain an order that a domain name should be transferred:
(1) the domain name is identical 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 or is being used in bad faith.
Due to the common authority of the ICANN policy governing both the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and these STOP proceedings, the Panel will exercise its discretion to rely on relevant UDRP precedent where applicable.
Under the STOP proceedings, a STOP Complaint may only be filed when the domain name in dispute is identical to a trademark or service mark for which a Complainant has registered an Intellectual Property (IP) claim form. Therefore, every STOP proceeding necessarily involves a disputed domain name that is identical to a trademark or service mark in which a Complainant asserts rights. The existence of the “.biz” generic top-level domain (gTLD) in the disputed domain name is not a factor for purposes of determining that a disputed domain name is not identical to the mark in which the Complainant asserts rights.
Complainant, through continuous use and registration in Germany has established that it has rights in the AHA! mark. The AHA! mark is identical to the <aha.biz> domain name. Therefore, the Panel finds that STOP Policy ¶ 4(a)(i) has been satisfied.
Respondent has failed to come forward with a Response and therefore it is presumed 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).
Furthermore, when Respondent fails to submit a Response the Panel is permitted to make all inferences in favor of Complainant. See 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”).
Complainant has established that it has rights in the AHA! mark because it has used the mark continuously in commerce since 1993 and has registered the mark in Germany. Respondent has not come forward to offer evidence that it owns any trademarks, service marks, or common law rights in the AHA! mark, and therefore has not demonstrated any rights in <aha.biz> under STOP Policy ¶ 4(c)(i). See Nat’l Acad. Of Recording Arts & Sci Inc. v. Lsites, FA 103059 (Nat. Arb. Forum Feb. 11, 2002) (finding that because Respondent had not come forward the Panel could infer that it had no trademark or service marks identical to <grammy.biz> and therefore had no rights or legitimate interests in the domain name).
Respondent has failed to come forward and present evidence that it plans to use the <aha.biz> domain name in relation to a bona fide offering of goods and services in relation to business interests it may have under the AHA! mark. Without this information the Panel cannot find that Respondent will use the <aha.biz> domain name for a bona fide offering of goods or services pursuant to STOP Policy ¶ 4(c)(ii). See Woolworths plc. v. Anderson, D2000-1113 (WIPO Oct. 10, 2000) (finding that, absent evidence of preparation to use the domain name for a legitimate purpose, the burden of proof lies with the Respondent to demonstrate that it has rights or legitimate interests); see also Gene Logic Inc. v. Bock, FA 103042 (Nat. Arb. Forum March 4, 2002) (finding that, in order to show rights or legitimate interests in the disputed domain name, Respondent must establish with valid evidence “a course of business under the name, or at least significant preparation for use of the name prior to learning of the possibility of a conflict” with an IP Claimant).
There is no evidence on the record, and Respondent has not come forward to establish that it is commonly known by the <aha.biz> domain name pursuant to STOP Policy ¶ 4(c)(iii). See Great S. Wood Pres., Inc. v. TFA Assocs., FA 95169 (Nat. Arb. Forum Aug. 5, 2000) (finding that Respondent was not commonly known by the domain name <greatsouthernwood.com> where Respondent linked the domain name to <bestoftheweb.com>); see also Gallup Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that Respondent does not have rights in domain name when Respondent is not known by the mark).
The Panel finds that STOP Policy ¶ 4(a)(ii) has been satisfied.
Complainant has presented evidence that Respondent is attempting to sell or lease the disputed domain name. It can be inferred, from the apparent willingness of Respondent to sell or lease the domain name from the onset, that <aha.biz> was registered primarily for the purpose of selling or renting it. This is evidence of bad faith registration pursuant to STOP Policy ¶ 4(b)(i). See Wembley Nat’l Stadium Ltd. v. Thomson, D2000-1233 (WIPO Nov. 16, 2000) (finding bad faith based on the apparent willingness of the Respondent to sell the domain name in issue from the outset, albeit not at a price reflecting only the costs of registering and maintaining the name); see also American Anti-Vivisection Soc’y v. “Infa dot Net” Web Serv., FA 95685 (Nat. Arb. Forum Nov. 6, 2000) (finding that “general offers to sell the domain name, even if no certain price is demanded, are evidence of bad faith”).
Respondent was given notice by the registry, before registering the disputed domain name that an IP claim had been filed in relation to the AHA! mark and <aha.biz>; therefore Respondent was on notice, when it registered <aha.biz> that Complainant had rights in the AHA! mark and its corresponding domain name. Respondent’s knowledge of Complainant’s rights precluded it from registering the disputed domain name in good faith. See Samsonite Corp. v. Colony Holding, FA 94313 (Nat. Arb. Forum Apr. 17, 2000) (evidence of bad faith includes actual or constructive knowledge of commonly known mark at the time of registration).
The Panel finds that STOP Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the Start-up Trademark Opposition Policy, the Panel concludes that relief shall be hereby granted.
Accordingly, it is Ordered that the domain name <aha.biz> be transferred from Respondent to Complainant and subsequent challenges under the STOP Policy against this domain name shall not be permitted.
Sandra Franklin, Panelist
Dated: May 24, 2002
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page