American Retirement Corporation v. vitty Inc.
Claim Number: FA0206000114524
Complainant is American Retirement Corporation, Brentwood, TN, USA (“Complainant”) represented by Glenn Sheriff. Respondent is Vitty Inc., Taipei, TAIWAN (“Respondent”) represented by Paul Chou.
The domain name at issue is <arc.biz>, registered with 007 Names, 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.
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 June 7, 2002; the Forum received a hard copy of the Complaint on June 10, 2002.
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 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 22, 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.
The <arc.biz> domain name is identical to Complainant's A.R.C. mark.
Respondent has no rights or legitimate interests in the <arc.biz> domain name.
Respondent registered the <arc.biz> domain name in bad faith.
Respondent failed to submit a Response.
Complainant has used the A.R.C.mark since 1978 in relation to its real estate management services in the field of retirement housing. Complainant registered the mark with the United States Patent and Trademark Office on August 17, 1982 as Registration Number 1,235,817.
Respondent registered the disputed domain name on March 27, 2002. Respondent is a network hardware and services corporation in Taiwan. Complainant’s search of Respondent’s website located at <vitty.com> revealed no product or service promoted by Respondent that aligns with the word ARC or acronym A.R.C. Complainant’s investigation has found no evidence that Respondent plans to use, or has made any demonstrable preparations to use the <arc.biz> domain name. Respondent has registered over 265 “.biz” domain names.
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 A.R.C. mark through continuous use and registration with the United States Patent and Trademark Office.
Respondent’s <arc.biz> domain name is identical to Complainant’s A.R.C. mark because periods are not allowed in domain names. Therefore the omission of the periods in the <arc.biz> domain name is insignificant when determining whether the domain name is identical to Complainant’s A.R.C. mark. See Chernow Communications Inc. v. Kimball, D2000-0119 (WIPO May 18, 2000) (holding “that the use or absence of punctuation marks, such as hyphens, does not alter the fact that a name is identical to a mark"); see also Chi-Chi’s Inc. v. Rest. Commentary, D2000-0321 (WIPO June 29, 2000) (finding the domain name <chichis.com> to be identical to Complainant’s CHI-CHI’S mark, despite the omission of the apostrophe and hyphen from the 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”).
There is no evidence on record, and Respondent has not come forward to present any evidence that it owns a trademark or service mark for ARC. Complainant’s investigation of Respondent’s website and business has revealed no service or product from Respondent that is marketed under or known by the ARC or A.R.C. moniker. Therefore Respondent has failed to establish that it has rights or legitimate interests 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).
It is Respondent’s responsibility to come forward and provide evidence that it is using or plans to use the disputed domain name in relation to a bona fide offering of goods or services. Respondent has not come forward with any evidence. Furthermore, Respondent has registered 265 “.biz” domain names, which gives rise to the inference that Respondent registered the domain name without the intent of using it in connection with a legitimate purpose. Therefore, Respondent has not established that it has rights or legitimate interests in <arc.biz> pursuant to STOP Policy ¶ 4(c)(ii). See Woolworths plc. v. Anderson, D2000-1113 (WIPO Oct. 10, 2000) (finding that absent evidence of preparation to use the domain name for a legitimate purpose, the burden of proof lies with the Respondent to demonstrate that it has rights or legitimate interests); see also Gene Logic Inc. v. Bock, FA 103042 (Nat. Arb. Forum Mar. 4, 2002) (finding that in order to show rights or legitimate interests in the disputed domain name Respondent must establish with valid evidence “a course of business under the name, or at least significant preparation for use of the name prior to learning of the possibility of a conflict” with an IP Claimant).
Respondent is known to the Panel as “Vitty Inc.” and “Paul Chou,” but not as ARC, A.R.C.or <arc.biz>. Respondent has not come forward with any evidence to show that it is commonly known by any of these names, therefore Respondent has failed to establish that it has 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 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 <arc.biz> be transferred from Respondent to Complainant and subsequent challenges under the STOP Policy against this domain name shall not be permitted.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated: July 23, 2002
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