Claim Number: FA0807001216196
Complainant is Wellington Window & Door Company (“Complainant”), represented by Charles
J. Lloyd, of Livgard & Rabuse, P.L.L.P.,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <wellingtonwindows.com>, registered with Udomainname.com 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.
Mark McCormick as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on July 18, 2008; the National Arbitration Forum received a hard copy of the Complaint on July 18, 2008.
On July 29, 2008, Udomainname.com LLC confirmed by e-mail to the National Arbitration Forum that the <wellingtonwindows.com> domain name is registered with Udomainname.com LLC and that the Respondent is the current registrant of the name. Udomainname.com LLC has verified that Respondent is bound by the Udomainname.com LLC 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 August 6, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of August 26, 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.
A timely Response was received in electronic format only prior to the Response deadline, and not in hard copy on August 26, 2008. The Response is therefore incomplete under ICANN Rule 5.
On September 5, 2008, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Mark McCormick as Panelist.
Complainant requests that the domain name be transferred from Respondent to Complainant.
Complainant asserts its rights in the
Respondent contends that the
Complainant does hold a trademark
registration of the
Paragraph 15(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (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.”
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;
(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.
The parties have skirmished over Respondent’s failure to comply with in the manner prescribed in Rule 5 of the ICANN Rules for Uniform Domain Name Resolution Policy by not providing a hard copy of his response. The panel has determined to consider the response because it finds that even if the decision was based solely on the complaint the record is insufficient for Complainant to prevail.
Complainant has established its rights in the
Even though Complainant alleges that Respondent uses the disputed domain name to attract users to its website to offer goods and services of Complainant’s competitors, Respondent has denied any present use of the disputed domain name and Complainant has offered no evidence of such use. The record does show, however, that Respondent has parked the domain name with an intention to turn it to commercial advantage. Use of the confusingly similar domain name as a portal to obtain commercial advantage through “click-through” revenue is not a legitimate use within the meaning of Policy ¶ 4(a)(ii). See Disney Enters., Inc. v. Kamble, FA 918556 (Nat. Arb. Forum Mar. 27, 2007).
The record shows Respondent purchased the disputed domain name at auction in the hope that he might turn it to his commercial advantage. The record contains no evidence that respondent knew of Complainant when he purchased the domain name or that Respondent has made any commercial use of the domain name. Complainant has not demonstrated that respondent registered and used the domain name in bad faith within the meaning of Policy ¶ 4(a)(iii). See Societe des Produits Nestle S.A. v. Pro Fiducia Treuhand AG, D2001-0916 (WIPO Oct. 12, 2001). Moreover, Complainant did not show that Respondent knew or should have known of Complainant. This circumstance reinforces the conclusion that Respondent did not act in bad faith. See Seaway Bolt & Specials Corp. v. Digital Income Inc., FA 114672 (Nat. Arb Forum Aug. 5, 2002).
Complainant did not meet its burden on the issue of bad faith registration and
use, the Panel cannot find on that basis alone that Complainant engaged in
reverse domain name highjacking.
Having failed to establish all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.
Accordingly, it is so Ordered.
Mark McCormick, Panelist
Dated: September 19, 2008
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