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.
A.
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.
B.
Respondent
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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