Start A Business.com Inc. v. Krut Wayne
Claim Number: FA0204000109708
Complainant
is Start A Business.com Inc.,
Tappan, NY (“Complainant”) represented by Patrick
J. O’Neill. Respondent is Krut Wayne, Dunwoody, GA (“Respondent”).
The
domain name at issue is <startabusiness.biz>,
registered with Key-Systems GMBH.
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. Crary 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 15, 2002; the Forum
received a hard copy of the Complaint on May 22, 2002.
On
June 18, 2002, a Notification of Complaint and Commencement of Administrative
Proceeding (the “Commencement Notification”), setting a deadline of July 8,
2002 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 July 25, 2002, pursuant to STOP Rule 6(b), the Forum
appointed James A. Crary 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.
A.
Complainant
The
<startabusiness.biz> domain name is identical to Complainant’s
mark.
Respondent
has no “tradnames or rights” which grants it superior rights in the <startabusiness.biz>
domain name.
Respondent
registered the <startabusiness.biz> domain name “purely as a
speculative venture.”
B.
Respondent
Respondent
failed to submit a Response in this proceeding.
Complainant has pending trademark
applications with the United States Patent and Trademark Office (“USPTO”) for
the START A BUSINESS.COM mark and $TART-A-BUSINESS.COM stylized mark. Complainant claims to have become well-known
in the business world with the name Start a Business.com, Inc.
Complainant claims to have “two Trademark
actions pending with the [USPTO] for the use of the phrase ‘Start a
Business.’” Also, Complainant claims to
have been using the phrase “Start a Business” in connection with its Internet
start-up business services since 1998.
However, Complainant does not provide any substantiating evidence that
proves use of the phrase “Start a Business” in connection with its services. Complainant only provides evidence of its
website where it consistently uses the START A BUSINESS.COM mark only. Furthermore, Complainant has not provided
any evidence of trademark applications for the “Start a Business” phrase;
Complainant only provides evidence of trademark applications for the START A
BUSINESS.COM mark and $TART-A-BUSINESS.COM stylized mark.
Respondent registered the <startabusiness.biz>
domain name on March 27, 2002.
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
has established rights in the START A BUSINESS.COM mark through use in commerce
for its Internet start-up business services.
Also, Complainant has shown its interests in the START A BUSINESS.COM
mark by applying for federal trademark protection with the USPTO.
Complainant
is inconsistent when describing its use of the phrase “Start a Business.” Complainant claims to use the phrase “Start
a Business” as the identifying phrase for its services; yet, Complainant states
that “it has become well-known in the business world [as] Start a Business.com,
Inc.” Furthermore, Complainant’s
website located at <start-a-business.com> consistently uses the START A
BUSINESS.COM mark and not the phrase “Start a Business.” Moreover, Complainant claims to have pending
trademark applications for “Start a Business.”
Complainant, however, only provides evidence for the trademark
applications related to the START A BUSINESS.COM mark.
Nevertheless,
it has been found that proof of a mark identical to the subject domain name,
but for the mark’s “.com” suffix, is enough to satisfy the STOP Policy ¶
4(a)(i) standing threshold. Therefore,
because the standing issue is not determinative of the outcome, the Panel
presumes Complainant has sufficient rights in the START A BUSINESS.COM mark to
surpass the standing threshold. See
Defensive Driver Online Ltd. V. Marco Publ’g Corp., FA 112435 (Nat. Arb.
Forum July 9, 2002) (finding Complainant’s DEFENSIVEDRIVING.COM mark identical
to Respondent’s <defensivedriving.biz> domain name for purpose of
resolving domain name disputes).
Accordingly,
the Panel finds that Complainant has satisfied the requirements of STOP Policy
¶ 4(a)(i).
Complainant
failed to assert that Respondent has no rights or legitimate interests in the <startabusiness.biz>
domain name. Complainant merely stated
that “Respondent does not own any tradenames or rights which would give
superior right to use of the domain name.”
Complainant also failed to provide any evidence to support this
assertion. Hence, a finding that
Respondent has no rights or legitimate interests in the domain name in not
warranted.
Complainant
also failed to sufficiently establish bad faith registration or use by Respondent. Complainant simply noted that “Respondent
has registered the domain name purely as a speculative venture.” Complainant did not support this claim with
any evidence proving that the “speculative venture” represented bad faith. Therefore, no bad faith registration or use
by Respondent can be found.
Complainant has failed to establish
multiple elements required in a STOP Complaint. Therefore, the Complainant shall be DISMISSED.
Accordingly, the requested relief to
transfer the <startabusiness.biz> domain name is DENIED. There are no further challenges pending
against this domain name under the STOP Policy.
James A. Crary, Panelist
Dated: July 31. 2002
Click Here to return to
the main Domain Decisions Page.
Click
Here to return to our Home Page