National Business Furniture v. CSI
Claim Number: FA0204000112589
Complainant
is National Business Furniture,
Milwaukee, WI (“Complainant”).
Respondent is CSI, Austin, TX
(“Respondent”).
The
domain name at issue is <desks.biz>,
registered with Gal Communications Ltd.
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 26, 2002; the Forum
received a hard copy of the Complaint on April 26, 2002.
On
May 20, 2002, a Notification of Complaint and Commencement of Administrative
Proceeding (the “Commencement Notification”), setting a deadline of June 10,
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 15, 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
Complainant
has a pending trademark application for FURNITUREONLINE.COM.
Respondent
registered <desks.biz> in bad faith.
B.
Respondent
Respondent failed to submit a Response.
Complainant does not claim or assert to
have any rights in the term DESKS.
Complainant merely notes that it is in the online furniture sales
business, and states that it has a pending trademark application for FURNITUREONLINE.COM.
Respondent registered the disputed 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.
Due
to the fact that Complainant failed to assert any rights in a trademark or
service mark identical to <desks.biz>, the Panel finds that STOP
Policy ¶ 4(a)(i) has not been satisfied.
Having failed to establish a necessary
element required under the Start-up Trademark Opposition Policy, the Panel
concludes that relief shall be hereby denied.
Accordingly, it is Ordered that the
Complaint be dismissed. There is
one further challenge pending against this domain name under the STOP Policy;
however, the claimant in the pending challenge and claimant in the instant case
are the same entity. Pursuant to STOP
Policy ¶ 4(l)(ii)(3) and STOP Rule 15(e), further challenges against this
domain name under the STOP Policy shall not be permitted.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated: July 17, 2002
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