Spherion Corporation v. Domain Services
Rotterdam
Claim Number: FA0204000112456
Complainant
is Spherion Corporation, Ft.
Lauderdale, FL, USA (“Complainant”) represented by Rochelle M Ammiano. Respondent
is Domain Services Rotterdam,
Rotterdam, NETHERLANDS (“Respondent”).
The
domain name at issue is <interim.biz>,
registered with Network Solutions, 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.
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 26, 2002; the Forum
received a hard copy of the Complaint on April 27, 2002.
On
May 3, 2002, a Notification of Complaint and Commencement of Administrative
Proceeding (the “Commencement Notification”), setting a deadline of May 23,
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 June 8, 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
<interim.biz> domain name is identical to Complainant's INTERIM
mark.
Respondent
has no rights or legitimate interests in the <interim.biz> domain
name.
Respondent
registered the <interim.biz> domain name in bad faith.
B.
Respondent
Respondent
failed to respond.
Complainant holds a service mark for
INTERIM registered on the Principal Register of the United States Patent and
Trademark Office (Reg. No. 1.763,176).
Complainant has used its INTERIM mark since 1976.
Respondent registered the disputed domain
name on March 27, 2002. Respondent is
not licensed by Complainant to use the INTERIM mark. Complainant’s investigation has found no evidence that Respondent
owns a trademark or service mark for INTERIM or <interim.biz>.
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 its rights in the INTERIM
mark through registration on the Principal Register of the United States Patent
and Trademark Office. Respondent’s <interim.biz>
domain name is identical to Complainant’s INTERIM mark.
The
Panel finds that STOP Policy ¶ 4(a)(i) has been satisfied.
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 to the INTERIM mark. Respondent
has not come forward, and there is no evidence on record that proves that
Respondent owns any trademark or service marks for INTERIM or <interim.biz>. Therefore Respondent has not established
that it has any rights or legitimate interests in the disputed domain name
pursuant to 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 did
not come forward with a Response, 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).
Due to Complainant’s longstanding use of
the INTERIM mark, any use by Respondent of the <interim.biz>
domain name will cause Internet users to be confused as to the source and
sponsorship of the domain name. As a
result, Respondent’s intended use of the disputed domain name is not considered
to be a bona fide offering of goods or services pursuant to STOP Policy ¶
4(c)(ii). See William L. Lyon &
Assocs., Inc. v. Yata, FA 103043 (Nat. Arb. Forum March 21, 2002) (finding the Respondent’s “intent to
trade [on] the goodwill of Complainant’s mark, by attracting Internet users
confused as to the likely affiliation between Complainant and Respondent’s
website” indicated the Respondent had no rights or legitimate interests
pursuant to STOP Policy ¶ 4(c)(ii)); see also Credit Suisse Group o/b/o
Winterthur Ins. Co. v. Pal-Ex Kft, FA 102971 (Nat. Arb. Forum Feb. 25,
2002) (“The use of another's trademark to attract users to Respondent's domain
is not considered to be a bona fide offering of goods or services pursuant to
STOP Policy ¶ 4(c)(ii)”).
There is no evidence, and Respondent has
not come forward to establish that it is commonly known as INTERIM or <interim.biz>. Therefore Respondent has no rights or
legitimate interests in the disputed domain name pursuant to STOP Policy
¶4(c)(iii). See CBS Broadcasting, Inc. v. LA-Twilight-Zone, D2000-0397 (WIPO June
19, 2000) (finding that Respondent has failed to demonstrate any rights or
legitimate interests in the <twilight-zone.net> domain name since
Complainant had been using the TWILIGHT ZONE mark since 1959); 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.
Based on the fact that Complainant’s mark
is registered on the Principal Register of the United States Patent and
Trademark Office and the nature of the STOP IP claim procedure, Respondent was
on notice as to Complainant’s rights in the INTERIM mark when it registered
<interim.biz>.
Registration of the domain name, despite this notice, is evidence of bad
faith registration. See Gene Logic
Inc. v. Bock, FA 103042 (Nat. Arb. Forum Mar. 4, 2002) (finding that the
unique nature of the STOP Policy and the notice given to Respondent regarding
existing IP Claims identical to its chosen domain name precluded good faith
registration of <genelogic.biz> when Respondent registered it with “full
knowledge that his intended business use of this domain name was in direct
conflict with a registered trademark of a known competitor in exactly the same
field of business”); see also Gehl Co. v. Gehl, FA 102816 (Nat.
Arb. Forum Jan. 30, 2002) (finding that the “long standing use and historic
nature” of the Complainant’s GEHL mark put the Respondent on notice as to the
existence of the mark, thereby making Respondent aware that it was infringing
upon Complainant’s rights).
Furthermore, any use of the disputed
domain name by Respondent will cause a likelihood of confusion as to the
source, sponsorship and affiliation of the disputed domain name. It can be inferred that Respondent will use
this confusion to its commercial advantage, and attract Complainant’s customers
to Respondent’s website for its own commercial gain. This is evidence of bad faith use pursuant to STOP Policy ¶
4(b)(iv). See Fluor Corp. v. Song,
FA 102757 (Nat. Arb. Forum Jan. 31, 2002) (finding that, where the Respondent’s
<fluor.biz> domain name was identical to the Complainant’s FLUOR mark,
Internet users would likely believe an affiliation between the Respondent and
Complainant); see also Pillsbury Co. v. Prebaked Scandinavia ab,
FA 102970 (Nat. Arb. Forum Jan. 31, 2002) (finding registration of a domain
name identical to Complainant’s mark to be in bad faith under STOP Policy ¶
4(b)(iv) when use of the domain name would likely cause confusion as to the
affiliation between Respondent and Complainant).
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 <interim.biz> be transferred from Respondent to
Complainant and subsequent challenges under the STOP Policy against this domain
name shall not be permitted.
James A. Crary, Panelist
Dated June 15, 2002
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