Wellington Window & Door
Company v. Shen Kaixin
Claim Number: FA0807001216196
PARTIES
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.
PANEL
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.
PROCEDURAL HISTORY
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 postmaster@wellingtonwindows.com 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.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
Complainant asserts its rights in the
B. Respondent
Respondent contends that the
FINDINGS
Complainant does hold a trademark
registration of the
DISCUSSION
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).
Even though
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.
DECISION
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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