New Age Industries, Inc. v. CyberVision
Network
Claim Number: FA0204000112568
Complainant
is NewAge Industries, Inc.,
Southampton, PA (“Complainant”). Respondent is CyberVision Network, Blaine, WA (“Respondent”) represented by Stephen L. Anderson, of Anderson & Shippey.
The
domain name at issue is <newage.biz>,
registered with 123 Registration, 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.
The
Honorable Charles K. McCotter, Jr. 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 May 3, 2002.
On
May 10, 2002, a Notification of Complaint and Commencement of Administrative
Proceeding (the “Commencement Notification”), setting a deadline of May 30,
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 1, 2002, pursuant to STOP Rule 6(b), the Forum
appointed the Honorable
Charles K. McCotter, Jr. 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
<newage.biz> domain name is identical to Complainant's NEWAGE
mark.
Respondent
has no rights or legitimate interests in the <newage.biz> domain
name.
Respondent
registered the <newage.biz> domain name in bad faith.
B.
Respondent
Respondent
failed to submit a Response.
Complainant has held a trademark
registration with the United States Patent and Trademark Office since June 27,
1989 for NEWAGE (Reg. No. 1,545,260).
Complainant has used the name since 1951 in relation to plastic tubing.
Respondent registered the disputed domain
name on March 27, 2002. Respondent is a
domain name reseller. When contacted by
Complainant, Respondent told Complainant to
“make my boy an offer,” and “make an offer he cannot refuse.”
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 that it has rights in the NEWAGE mark through continuous use
and trademark registration in the United States. Respondent’s <newage.biz> domain name is identical
to Complainant’s NEW AGE 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”).
Respondent does not have any trademark or
service mark registrations for the NEWAGE mark. Therefore, Respondent does not have 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).
Based on Respondent’s behavior when
contacted by Respondent it can be inferred that Respondent registered the
disputed domain name in order to sell it to Complainant. Sale of a domain name is not considered to
be a bona fide offering of goods or services pursuant to STOP Policy ¶
4(c)(ii). See J. Paul Getty Trust v. Domain 4 Sale &
Co., FA 95262 (Nat. Arb. Forum Sept. 7, 2000) (finding rights or legitimate
interests do not exist when one has made no use of the websites that are
located at the domain names at issue, other than to sell the domain names for
profit); see also Kinko’s Inc. v.
eToll, Inc., FA 94447 (Nat. Arb. Forum May 27, 2000) (finding that the
Respondent has no rights or legitimate interests in the domain name where it
appeared that the domain name was registered for ultimate use by the
Complainant).
Respondent is not commonly known as
NEWAGE or <newage.biz>.
Therefore, Respondent has no rights or legitimate interests in the
disputed domain name pursuant to STOP Policy ¶ 4(c)(iii). See 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); see also Broadcom Corp. v. Intellifone Corp., FA 96356 (Nat. Arb. Forum Feb.
5, 2001) (finding no rights or legitimate interests because Respondent is not
commonly known by the disputed domain name or using the domain name in
connection with a legitimate or fair use).
The Panel finds that STOP Policy ¶
4(a)(ii) has been satisfied.
The registration of a domain name
primarily for the purpose of selling it to Complainant is evidence of bad faith
registration and use pursuant to STOP Policy ¶ 4(b)(i). Based on the evidence submitted by
Complainant, Respondent has engaged in this type of behavior. 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 Am.
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”); see also Xerox Corp. v. Imaging Solution,
D2001-0313 (WIPO Apr. 25, 2001) (finding that the Respondent registered the
domain name in the hope and expectation of being able to sell it to the
Complainant for a sum of money in excess of its out-of-pocket expenses and/or
in the hope of forcing the establishment of a business arrangement beneficial to
the Respondent).
Furthermore, based on the nature of STOP
IP Claim procedure Respondent had actual notice of Complainant’s rights in the
<newage.biz> domain name when it was registered. Therefore, Respondent’s registration of the
<newage.biz> domain name was in bad faith. See Valspar
Sourcing, Inc. v. TIGRE, FA 112596 (Nat.
Arb. Forum June 4, 2002) (“Respondent was on notice of Complainant’s rights in
PAINT.BIZ when it registered the disputed domain name, because Respondent
received notice of Complainant’s IP Claim.
Respondent’s registration of the disputed domain name despite this
notice when Respondent had no right or legitimate interest in the domain name
is evidence of bad faith”); see also 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 <newage.biz> be transferred from Respondent to
Complainant and subsequent challenges under the STOP Policy against this domain
name shall not be permitted.
The Honorable Charles K. McCotter, Jr.,
Panelist
Dated: July 9, 2002
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