Peter Geraci v. Bruce Kane
Claim Number: FA0809001222742
PARTIES
Complainant is Peter Geraci (“Complainant”), represented by Brian A.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <infotap.com>,
registered with Godaddy.com, Inc.
PANEL
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.
James A. Carmody, Esq., as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
electronically on September 2, 2008; the National Arbitration Forum received a
hard copy of the Complaint on September 3, 2008.
On September 3, 2008, Godaddy.com, Inc. confirmed by e-mail to the
National Arbitration Forum that the <infotap.com>
domain name is registered with Godaddy.com, Inc. and that the Respondent is the
current registrant of the name. Godaddy.com,
Inc. has verified that Respondent is bound by the Godaddy.com, Inc.
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 5, 2008, a Notification of Complaint and Commencement of
Administrative Proceeding (the “Commencement Notification”), setting a deadline
of September 25, 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@infotap.com by e-mail.
A timely Response was received and determined to be complete on
September 24, 2008.
On September 29, 2008, Complainant timely filed an Additional
Submission which was considered by the Panel.
On October 2, 2008, pursuant to Complainant’s
request to have the dispute decided by a single-member Panel, the National
Arbitration Forum appointed James A. Carmody, Esq., as Panelist.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant makes the following assertions:
1. Respondent’ <infotap.com> domain name, the domain name at issue, is confusingly similar to Complainant’s INFO TAPES mark.
2. Respondent does not have any rights or legitimate interests in the domain name at issue.
3. Respondent registered and used the domain name at issue in bad faith.
B. Respondent makes the following assertions:
1. Respondent denies that the domain name is identical or confusingly similar to a mark in which Complainant has exclusive rights.
2. Respondent claims rights and legitimate interests in the domain name at issue, having registered it seven years ago in support of a portal search engine.
3. Respondent denies that it has registered or used the domain name at issue in bad faith.
C. Additional Submissions:
Complainant filed an additional submission which essentially further
argued the positions in the Complaint and noted that Respondent’s receipt of
$3.55 in pay-per-click revenue over the past five years is evidence of bad
faith in light of the commercial gain of Respondent.
FINDINGS
Complainant has applied for, but
not yet obtained, a federal registration for his INFO TAPES mark. He uses this
mark in connection with providing free legal information to Internet users with
bankruptcy and credit problems and has done so since at least December 6, 1998
on his website resolving from his <infotapes.com> domain name. Complainant has also used his INFO TAPES mark
in connection with television advertisements and a telephone number which
consumers can call to receive free telephonic legal information. In addition, Complainant has provided evidence
of
Respondent, who maintains an
address in
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.
Complainant’s mark, INFO TAPES, is not identical to the <infotap.com> domain name at issue and there is no evidence, by affidavit or otherwise, that the domain is confusingly similar to Complainant’s mark. There is no evidence of actual confusion of the public by affidavit or other evidence. Accordingly, a persuasive argument could be made that Complainant has not satisfied Policy ¶ 4(a)(i).
However, unlike
Policy ¶ 4(a)(i), which focuses on Complainant’s mark and the confusing
similarity of the disputed domain name, Policy ¶ 4(a)(iii) addresses
Respondent’s use of the disputed domain name.
In this case, there is no evidence whatsoever that Respondent had actual
or constructive notice of Complainant’s INFO TAPES mark when he registered <infotap.com> in November of 2003.
Complainant has failed to meet the burden of proof of bad faith registration and use under Policy ¶ 4(a)(iii). See Starwood Hotels & Resorts Worldwide, Inc. v. Samjo CellTech.Ltd, FA 406512 (Nat. Arb. Forum Mar. 9, 2005) (finding that the complainant failed to establish that the respondent registered and used the disputed domain name in bad faith because mere assertions of bad faith are insufficient for a complainant to establish Policy ¶ 4(a)(iii); 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).
Since the Complainant has failed to
satisfy the third element of the Policy, it is not necessary for the Panel to
make findings as to the other two. Vail Corp. & Vail Trademarks, Inc. v.
Resort Destination Mktg., FA
1106470 (Nat. Arb. Forum Jan. 8, 2008) (finding it unnecessary to examine all
three elements of the Policy once shown the complainant could not satisfy one
element); Occidental Hoteles Mgmt., S.A., & Corictal II, S.A. v.
Hargrave Arts, LLC, FA 959645 (Nat. Arb. Forum May 21, 2007) (deciding not
to inquire into the remaining elements of the Policy where the complainant had
failed to meet its burden for one).
DECISION
Having failed to establish all three elements required under the ICANN
Policy, the Panel concludes that relief shall be DENIED.
James A. Carmody, Esq., Panelist
Dated: October 16, 2008
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