The Village L.L.C. v Metricom Inc.
Claim Number: FA0211000133754
PARTIES
Complainant
is The Village L.L.C., Great Falls,
VA, (“Complainant”). Respondent is Metricom Inc., Los Gatos, CA, (“Respondent”).
REGISTRAR AND DISPUTED DOMAIN NAME
The
domain name at issue is <thevillage.com>,
registered with Network Solutions 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.
Tyrus
R. Atkinson, Jr., as Panelist.
PROCEDURAL HISTORY
Complainant
submitted a Complaint to the National Arbitration Forum (the “Forum”)
electronically on November 15, 2002; the Forum received a hard copy of the
Complaint on November 18, 2002.
On
November 22, 2002, Network Solutions
Inc. confirmed by e-mail to the Forum that the domain name <thevillage.com> is registered with Network Solutions Inc.
and that Respondent is the current registrant of the name. Network Solutions Inc.has verified that
Respondent is bound by the Network Solutions 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
November 22, 2002, a Notification of Complaint and Commencement of
Administrative Proceeding (the “Commencement Notification”), setting a deadline
of December 12, 2002 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@thevillage.com by
e-mail.
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
December 30, 2002, pursuant to Complainant’s request to have the dispute
decided by a single-member Panel, the Forum appointed Tyrus R. Atkinson, Jr.,
as 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 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 Forum’s Supplemental Rules and any rules and
principles of law that the Panel deems applicable, without the benefit of any
Response from Respondent.
RELIEF SOUGHT
Complainant
requests that the domain name be transferred from Respondent to Complainant.
PARTIES’ CONTENTIONS
A.
Complainant
1. Respondent’s <thevillage.com> domain name is identical to Complainant’s
common law THE VILLAGE mark.
2. Respondent does not have rights to or
legitimate interests in the <thevillage.com>
domain name.
3. Respondent registered and used the <thevillage.com> domain name in
bad faith.
B.
Respondent
Respondent
failed to submit a Response in this proceeding.
FINDINGS
Complainant, The Village L.L.C., was
organized as a limited liability company under the laws of the State of
Virginia on October 4, 2002. Complainant offers services to professional women
who are single and pregnant, such as providing a place to live during the
pregnancy and for a few months thereafter. Complainant also provides meals,
childcare, speakers on topics of interest, and other related services.
Complainant’s limited advertising has
included posting advertisements at local businesses and restricted advertising
in two local newspapers. Complainant does not host a website because it would
“like to use <thevillage.com> as the web site address.”
Complainant does not have a registered
trademark for THE VILLAGE and does not have an application pending.
Respondent registered <thevillage.com> on May 5, 1995. The website has not been
used in the seven plus years since registration. Respondent does not have a
registered trademark for THE VILLAGE and does not have an application
pending.
DISCUSSION
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 the 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.
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 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.
Identical and/or Confusingly Similar
Respondent has not submitted a reply to
Complainant’s allegations, thereby permitting the Panel to conclude that all
reasonable inferences made by Complainant are true and accurate unless there is
evidence that is clearly contradictory.
Vertical Solutions Mgmt., Inc. v.
webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (failure
to respond allows all reasonable inferences of fact in the allegations of
Complainant to be deemed true); Desotec N.V. v. Jacobi Carbons AB, D2000-1398
(WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that
Complainant’s allegations are true unless clearly contradicted by the
evidence).
Even if the Panel accepts all assertions
made by Complainant as true, Complainant has not overcome its initial burden of
proof and therefore has not demonstrated the requisite prima facie case
under the ICANN Policy. Policy ¶ 4(a)(i) specifically states that a complainant
must prove that the disputed domain name is identical or confusingly similar to
a mark in which it has rights. Complainant has not shown that THE VILLAGE mark,
in only two months, has gained secondary meaning as to associate the alleged
mark with the provider of these services. See TotalFinaElf E&P USA, Inc.
v. Farnes, FA 117028 (Nat. Arb. Forum Sept. 16 2002) (finding that in order
to bring a claim under the Policy, Complainant must first establish a prima
facie case. Complainant’s initial burden is to provide proof of “valid,
subsisting rights in a mark that is similar or identical to the domain name in
question”); see also FRH Freies Rechenzerntrum v. Ingenieurburo FRH, FA
102945 (Nat. Arb. Forum Jan. 18, 2002) (determining that Complainant has not
proven by a preponderance of the relevant, admissible, and credible evidence
that the domain name in question is identical to a trademark in which
Complainant has rights despite Complainant’s mark being the dominant feature of
Complainant’s trade name).
Accordingly, the Panel finds that Policy
¶ 4(a)(i) has not been satisfied.
Rights or Legitimate Interests
This section need not be addressed given
that Complainant has not proven that THE VILLAGE is a mark in which it has
rights.
Registration and Use in Bad Faith
This section need not be addressed given
that Complainant has not proven that THE VILLAGE is a mark in which it has
rights.
However it is worth mentioning that it
would be impossible for Complainant to show that its rights precede that of
Respondent. The <thevillage.com> domain name was registered over seven
years ago in all probability because of its apparent generic value. At the time
of registration, there was no indication of Complainant’s purported interest in
the THE VILLAGE mark. Therefore, even if Complainant could prove rights in THE
VILLAGE mark, the rights were not vested prior to the time the domain name was
registered. See Ode v.
Intership Ltd., D2001-0074 (WIPO May 1, 2001) (“We are of the unanimous view that the trademark must predate the domain
name”); see also Aspen Grove, Inc. v. Aspen Grove,
D2001-0798 (WIPO October 5, 2001) (finding that it is impossible for Respondent
to register disputed domain name in bad faith if the Complainant's company did
not exist at the time of registration).
DECISION
The Panel hereby concludes that the
requested relief shall be DENIED.
Accordingly, it is ordered that the
Complaint be DISMISSED and the domain name <thevillage.com> SHALL NOT be transferred.
Tyrus R. Atkinson, Jr., Panelist
Dated: January 3, 2003
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