Cleartrack Information Network v. Lee
Young IL
Claim Number: FA0204000110762
Complainant
is Cleartrack Information Network,
Brentwood, TN, USA (“Complainant”) represented by Dean M. Weiland. Respondent
is Lee Young IL, Susung-Gu, Korea
(“Respondent”).
The
domain name at issue is <HAWK.biz>,
registered with Hangang Systems, 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.
Hon.
Ralph Yachnin 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 19, 2002; the Forum
received a hard copy of the Complaint on April 23, 2002.
On
April 26, 2002, a Notification of Complaint and Commencement of Administrative
Proceeding (the “Commencement Notification”), setting a deadline of May 16,
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 May 31, 2002, pursuant to STOP Rule 6(b), the Forum
appointed Hon. Ralph Yachnin
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
1. “Domain name HAWK.BIZ is covered under
Cleartrack Information Network’s registered trademark of ‘Hawk Visibility’ and
‘Hawk Next Generation Visibility.’”
2. Respondent has not established ownership
or beneficiary status of a trademark or service mark that is identical to the
domain name. Respondent has not
demonstrated preparations to use the disputed domain name in connection with a
bona fide offering of goods or services.
Respondent has not been commonly known by the domain name. Thus, Respondent has no rights or legitimate
interests in respect of the domain name.
3. Respondent registered the domain name
primarily for the purpose of selling, renting, or otherwise transferring the
domain name registration to Complainant or to a competitor of Complainant, for
valuable consideration in excess of Respondent’s documented out-of-pocket
costs. Respondent registered the domain
name in order to prevent Complainant from reflecting its mark in a
corresponding domain name.
4. Complainant filed its IP Claim with
Neulevel on August 28, 2001 and this precedes Respondent’s registration of the
domain name on March 27, 2002.
B.
Respondent did not submit a Response in this proceeding.
Complainant asserts that it holds
trademark rights in HAWK VISIBILITY and HAWK NEXT GENERATION VISIBILITY. Complainant makes no claim and has provided
no evidence that it holds rights in a HAWK or HAWK.BIZ mark.
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
holds trademark rights in HAWK VISIBILITY and HAWK NEXT GENERATION VISIBILITY.
The
STOP Policy requires Complainant to prove that the disputed domain name is identical
to a trademark or service mark in which it asserts rights. STOP Policy ¶ 4(a)(i). Because Complainant has not demonstrated
that it holds rights in a mark identical to the disputed domain name, its
Complaint must fail. See
Commonwealth Bank v. Rauch, FA 102729 (Nat. Arb. Forum Feb. 23, 2002)
(finding that the Complainant failed to establish rights in
<cominvest.biz> pursuant to STOP Policy ¶ 4(a)(i) because its COMMINVEST
mark was not identical to “cominvest” or <cominvest.biz>).
STOP
Policy ¶ 13(b) requires, “[i]n the event that there is more than one [IP]
Claimant, the Administrative Panel shall decide, in light of its findings in
respect to each of the elements identified in Paragraph 4(a), whether any
further challenges shall be permitted in respect of [the] domain name . . . .”
Because
there are no further IP Claims pending against the <hawk.biz>
domain name, the Panel need not address whether Respondent has rights or
interests in the domain name or whether it registered or used the domain name
in bad faith. Even if the Panel accepts
all of Complainant’s allegations as true, the Complaint must be dismissed
because STOP Policy ¶ 4(a)(i) has not been satisfied.
Having determined that Complainant lacks
sufficient rights under STOP Policy ¶ 4(a)(i) to make out a STOP Complaint, the
Panel concludes that relief must be denied.
Accordingly, the Complaint is dismissed.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated: June 3, 2002
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