DSN Software Inc. v. JDV Limited
Claim Number: FA0802001143772
Complainant is DSN Software Inc. (“Complainant”), represented by Martin
L. Laurence, of Martin L. Laurence Attorney at Law,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <dsn.com>, registered with Network Solutions, LLC.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On February 25, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 17, 2008 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to firstname.lastname@example.org by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <dsn.com> domain name is identical to Complainant’s DSN mark.
2. Respondent does not have any rights or legitimate interests in the <dsn.com> domain name.
3. Respondent registered and used the <dsn.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, DSN Software Inc., provides computer programs,
systems and hardware products and services.
Complainant has used its DSN mark in connection with this business since
1989. Complainant registered its DSN
mark with the United States Patent and Trademark Office (“USPTO”) on
Respondent registered the <dsn.com>
domain name on
Paragraph 15(a) of the 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 Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also 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.”).
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
Complainant has registered its DSN mark with the USPTO. The Panel finds this registration is
sufficient to establish Complainant’s rights in its DSN mark pursuant to Policy
¶ 4(a)(i). See
Respondent’s <dsn.com> domain name completely incorporates
Complainant’s DSN mark with the addition of the generic top-level domain
(“gTLD”) “.com.” The addition of the
gTLD “.com” is not legally significant when evaluating whether a disputed
domain name is identical to a mark.
Therefore, the Panel finds Respondent’s <dsn.com> domain name is identical to Complainant’s DSN
mark pursuant to Policy ¶ 4(a)(i). See
Pomellato S.p.A v. Tonetti, D2000-0493 (WIPO
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged Respondent does not have rights or
legitimate interests in the disputed domain name. Once Complainant presents a prima facie case supporting these
allegations, the burden shifts to Respondent to establish it does have rights
or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). The Panel
finds Complainant has presented a sufficient prima facie case to support its allegations. Respondent failed to submit a response to
these proceedings. Therefore, the Panel assumes
Respondent does not have rights or legitimate interests in the disputed domain
name pursuant to Policy ¶ 4(a)(ii). However, the Panel will nevertheless inspect
the record and determine whether Respondent has rights or legitimate interests
in the disputed domain name pursuant to Policy ¶ 4(c). See
Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l,
Respondent’s <dsn.com> domain name does not
resolve to an active website. The Panel
finds Respondent’s failure to make an active use of the disputed domain name is
not a use in connection with a bona fide
offering of goods or services pursuant to Policy ¶ 4(c)(i),
or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See
Pharmacia & Upjohn AB v. Romero,
D2000-1273 (WIPO Nov. 13, 2000) (finding no rights or legitimate interests
where the respondent failed to submit a response to the complaint and had
failed to make an active use of the domain name in question); see also Flor-Jon Films, Inc. v. Larson, FA 94974 (Nat. Arb. Forum
Respondent is listed in the WHOIS information as “JDV
Limited.” The record indicates
Complainant has not authorized Respondent to use its DSN mark. Therefore, the Panel finds Respondent is not
commonly known by the <dsn.com>
domain name pursuant to Policy ¶ 4(c)(ii). See Ian Schrager Hotels, L.L.C. v.
Taylor, FA 173369 (Nat. Arb. Forum
The Panel finds Policy ¶ 4(a)(ii) has been satisfied.
Respondent has not activated a website under the <dsn.com> domain name. The Panel finds Respondent’s failure to make
an active use of the disputed domain name is evidence of bad faith registration
and use pursuant to Policy ¶ 4(a)(iii). See
The Panel finds Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <dsn.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: April 3, 2008
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