E & L Corp. d/b/a Cameta Camera v. IPresident.org
Claim Number: FA0206000114522
Complainant is E & L Corp. d/b/a Cameta Camera, Amityville, NY (“Complainant”). Respondent is IPresident.org, East Meadow, NY (“Respondent”).
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <cametcamera.com>, registered with Intercosmos Media Group, 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.
Tyrus R. Atkinson, Jr., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on June 7, 2002; the Forum received a hard copy of the Complaint on June 12, 2002.
On June 10, 2002, Intercosmos Media Group, Inc. confirmed by e-mail to the Forum that the domain name <cametcamera.com> is registered with Intercosmos Media Group, Inc. and that Respondent is the current registrant of the name. Intercosmos Media Group, Inc. has verified that Respondent is bound by the Intercosmos Media Group, Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On June 19, 2002, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of July 9, 2002 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 email@example.com by e-mail.
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 Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed Tyrus R. Atkinson, Jr., as 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 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 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.
The <cametacamera.com> domain name is identical to Complainant's CAMETA CAMERA mark.
Respondent has no rights or legitimate interests in the disputed domain name.
Respondent registered and used the disputed domain name in bad faith.
Respondent failed to submit a Response.
Complainant filed for a trademark with the United States Patent and Trademark Office in December 2000 for CAMETA CAMERA in relation to photographic film development, retail store services, mail order services, and electronic retail store services. Complainant’s application for a trademark for CAMETA CAMERA was registered on March 19, 2002 as Registration Number 2,549,646. Complainant has used the CAMETA CAMERA mark in relation to its goods and services continuously since 1983.
In May 2001, Complainant found that <cametacamera.com> was registered by their competitor Vaughn Smith Camera, and the domain name was redirecting Internet traffic to <vaughnsmithcamera.com>. Complainant contacted Vaughn Smith Camera and they agreed to redirect <cametacamera.com> to Complainant’s website. When it came time to renew the registration on the disputed domain name Complainant received no notice from Vaughn Smith Camera or the registrar. By mid-August 2001 Complainant found out that the <cametacamera.com> domain name had been registered by Respondent.
Respondent has not developed the disputed domain name, and it currently displays a DirectNIC “coming soon” page. Respondent’s WHOIS information initially advertised that the domain name was for sale by stating “this domain name is for sale.” Respondent has since removed this announcement, after receiving correspondence from Complainant’s attorneys regarding this dispute.
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 the 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.
Paragraph 4(a) of the Policy requires that the 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 the Respondent is identical or confusingly similar 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 and is being used in bad faith.
Identical and/or Confusingly Similar
Complainant has established through continuous use and registration with the United States Patent and Trademark Office that it has rights in the CAMETA CAMERA mark. Furthermore, the <cametacamera.com> domain name is identical to Complainant’s CAMETA CAMERA mark because spaces between words are not allowed in domain names, and the addition of a generic top-level domain name such as “.com” is insignificant when determining whether a domain name is identical. See Pomellato S.p.A v. Tonetti, D2000-0493 (WIPO July 7, 2000) (finding <pomellato.com> identical to Complainant’s mark because the generic top-level domain (gTLD) “.com” after the name POMELLATO is not relevant); see also Fed’n of Gay Games, Inc. v. Hodgson & Scanlon, D2000-0432 (WIPO June 28, 2000) (finding that the domain name <gaygames.com> is identical to Complainant's registered trademark GAY GAMES).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Respondent has failed to come forward with a Response and therefore it is presumed that Respondent has no rights or legitimate interests in the disputed domain name. See Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that Respondents’ failure to respond can be construed as an admission that they have no legitimate interest in the domain names).
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”).
There is no evidence, and Respondent does not proffer evidence, that Respondent has rights or legitimate interests in respect to the disputed domain name. See Body Shop Int’l PLC v. CPIC NET & Hussain, D2000-1214 (WIPO Nov. 26, 2000) (finding “that on the evidence provided by the Complainant and in the absence of any submissions from the Respondents, that the Complainant has established that (i) the Respondents are not using and have not used, or are not demonstrating and have not demonstrated, an intent to use the said domain name in connection with a bona fide offering of goods or services; (ii) the Respondents are not and have not been commonly known by the said domain name; and (iii) the Respondents are not making legitimate noncommercial or fair use of the said domain name, without intending to mislead and divert consumers or to tarnish Complainant’s THE BODY SHOP trademark and service mark”).
Furthermore, Respondent has failed to establish a website at the disputed domain name even though it has owned <cametacamera.com> for over a year. Respondent's passive holding of the domain name demonstrates a lack of rights and legitimate interests. See Ziegenfelder Co. v. VMH Enter., Inc., D2000-0039 (WIPO Mar. 14, 2000) (finding that failure to provide a product or service or develop the site demonstrates that Respondents have not established any rights or legitimate interests in said domain name); see also Bloomberg L.P. v. Sandhu, FA 96261 (Nat. Arb. Forum Feb. 12, 2001) (finding that no rights or legitimate interest can be found when Respondent fails to use disputed domain names in any way).
There is no evidence on the record, and Respondent has not come forward to establish that it is commonly known by the <cametacamera.com> domain name pursuant to Policy ¶ 4(c)(ii). See 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); see also CBS Broad, 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).
Respondent registered the disputed domain name after the registration, operated for the benefit of Complainant, expired. It can be inferred that the Respondent had knowledge that the disputed domain name previously had been operated for the benefit of the Complainant, and therefore that Internet user confusion would result from Respondent's use. Therefore, Respondent is not using the disputed domain name in relation to a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Am. Anti-Vivisection Soc’y v. “Infa dot Net” Web Serv., FA 95685 (Nat. Arb. Forum Nov. 6, 2000) (finding that Complainant’s prior registration of the same domain name is a factor in considering Respondent’s rights or legitimate interest in the domain name); see also Caterpillar Inc. v. Quin, D2000-0314 (WIPO June 12, 2000) (finding that Respondent does not have a legitimate interest in using the domain names <caterpillarparts.com> and <caterpillarspares.com> to suggest a connection or relationship, which does not exist, with Complainant's mark CATERPILLAR).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Registration and Use in Bad Faith
Respondent's registration and passive holding of the <cametacamera.com> domain name supports a finding of bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See Alitalia –Linee Aeree Italiane S.p.A v. Colour Digital, D2000-1260 (WIPO Nov. 23, 2000) (finding bad faith where the Respondent made no use of the domain name in question and there are no other indications that the Respondent could have registered and used the domain name in question for any non-infringing purpose).
Based on Respondent’s original WHOIS information advertising the domain name for sale, it can be inferred that Respondent registered the disputed domain in order to sell it. Registration of a domain name with the primary intent to sell, rent or transfer the domain name is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(i). See Am. Online, Inc. v. Avrasya Yayincilik Danismanlik Ltd., FA 93679 (Nat. Arb. Forum Mar. 16, 2000) (finding bad faith where Respondent offered domain names for sale); see also Microsoft Corp. v. Mehrotra, D2000-0053 (WIPO Apr. 10, 2000) (finding bad faith where that Respondent registered the domain name for the purpose of selling it, as revealed by the name the Respondent chose for the registrant, “If you want this domain name, please contact me”); see also Euromarket Designs, Inc. v. Domain For Sale VMI, D2000-1195 (WIPO Oct. 26, 2000) (finding “the manner in which the Respondent chose to identify itself and its administrative and billing contacts both conceals its identity and unmistakably conveys its intention, from the date of the registration, to sell rather than make any use of the disputed domain name”).
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that the requested relief shall be hereby granted.
Accordingly, it is Ordered that the domain name <cametacamera.com> be transferred from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated: July 29, 2002
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