G2 Systems LLC v. G2Systems, Co.LTD
Claim Number: FA0808001221942
Complainant is G2 Systems LLC (“Complainant”), represented by Lauren
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <g2systems.com>, registered with Cydentity, Inc. d/b/a Cypack.com.
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.
Honorable Paul A. Dorf (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on August 25, 2008; the National Arbitration Forum received a hard copy of the Complaint on August 25, 2008. The Complaint was submitted in both Korean and English.
On August 31, 2008, Cydentity, Inc. d/b/a Cypack.com confirmed by e-mail to the National Arbitration Forum that the <g2systems.com> domain name is registered with Cydentity, Inc. d/b/a Cypack.com and that Respondent is the current registrant of the name. Cydentity, Inc. d/b/a Cypack.com has verified that Respondent is bound by the Cydentity, Inc. d/b/a Cypack.com 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 September 11, 2008, a Korean language Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of October 1, 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@g2systems.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On October 14, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Paul A. Dorf (Ret.) as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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 National Arbitration Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Pursuant to Rule 11(a) the Panel determines that the language requirement has been satisfied through the Korean language Complaint and Commencement Notification and, absent a Response, determines that the remainder of the proceedings may be conducted in English.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <g2systems.com> domain name is confusingly similar to Complainant’s G2SYSTEMSLLC.COM mark.
2. Respondent does not have any rights or legitimate interests in the <g2systems.com> domain name.
3. Respondent registered and used the <g2systems.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, G2 Systems LLC, states it is “a software consultant that performs systems integration services for financial services firms.” It provides evidence of its registration and use of the <g2systemsllc.com> domain name in connection with this business. Complainant’s own admission is that it has only been conducting its business under the G2SYSTEMSLLC.COM mark since 2006 and owns no registrations of this mark.
Respondent’s <g2systems.com> domain name was registered on May 30, 1996. The record provides no indication of what the disputed domain name is being used for. However, Complainant received an email from the email address listed on the <g2systems.com> domain name’s WHOIS information. Thus email stated that Respondent “was willing to transfer the disputed domain name” for a “reasonable price” and was sent in response to Complainant’s inquiry as to whether the disputed domain name was for sale.
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 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. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also 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.”).
Paragraph 4(a) of the Policy requires that 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 Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) 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 Panel declines to make a determination as to whether Complaint has established a prima facie case under Policy ¶¶ 4(a)(i) and (ii) because the Complaint fails to make a satisfactory bad faith argument under Policy ¶ 4(a)(iii). See Creative Curb v. Edgetec Int’l Pty. Ltd., FA 116765 (Nat. Arb. Forum Sept. 20, 2002) (finding that because the complainant must prove all three elements under the Policy, the complainant’s failure to prove one of the elements makes further inquiry into the remaining element unnecessary); see also Graman USA Inc. v. Shenzhen Graman Indus. Co., FA 133676 (Nat. Arb. Forum Jan. 16, 2003) (finding that general allegations of bad faith without supporting facts or specific examples do not supply a sufficient basis upon which the panel may conclude that the respondent acted in bad faith).
The <g2systems.com> domain name was registered
in 1996. Complainant admits that it did
not begin using the G2SYSTEMSLLC.COM mark until 2006. Previous panels have found that when a
disputed domain name was registered before a complainant began using its mark,
the respondent could not have registered its domain name in bad faith. Without any additional information in the
record, Complainant has failed to establish that Respondent registered the
disputed domain name in bad faith under Policy ¶ 4(a)(iii). See Ode v. Intership Ltd.,
D2001-0074 (WIPO May 1, 2001) (“[W]e are of
the unanimous view that the trademark must predate the domain name.”); see also Interep Nat'l Radio Sales, Inc. v. Internet Domain Names, Inc.,
D2000-0174 (WIPO May 26, 2000) (finding no bad faith where the respondent
registered the domain prior to the complainant’s use of the mark); see also TB Proprietary Corp. v. Village at La Quinta Realtors, FA
416462 (Nat. Arb. Forum Mar. 28, 2005) (because the respondent’s domain name
registration predated the complainant’s trademark filing date, the panel found
that “there was no bad faith on the part of Respondent when registering the
subject domain name”).
The Panel concludes that Complainant has failed to satisfy Policy ¶ 4(a)(iii).
Having failed to establish all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.
__________________________________________________________________
Honorable Paul A. Dorf (Ret.), Panelist
Dated: October 28, 2008
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