Meadwestvaco Corporation v. Sam Redden
Claim Number: FA0301000139719
PARTIES
Complainant is Meadwestvaco Corporation, Stamford, CT (“Complainant”) represented by Hugh Latimer, of Wiley Rein & Fielding LLP. Respondent is Sam Redden, Denver, CO (“Respondent”).
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <ataglance.net>, registered with Network Solutions, Inc..
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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on January 3, 2003; the Forum received a hard copy of the Complaint on January 6, 2003.
On January 7, 2003, Network Solutions, Inc. confirmed by e-mail to the Forum that the domain name <ataglance.net> 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 January 8, 2003, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 28, 2003 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@ataglance.net 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 February 4, 2003, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <ataglance.net> domain name is identical to Complainant’s AT-A-GLANCE mark.
2. Respondent does not have any rights or legitimate interests in the <ataglance.net> domain name.
3. Respondent registered and used the <ataglance.net> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Meadwestvaco
Corporation, produces consumer and office products, with its principal product
line consisting of planning, organizing and record keeping products sold under
the AT-A-GLANCE mark. Complainant has
operated under this mark since 1923, and holds several registrations with the
Principal Register of the United States Patent and Trademark Office for the
AT-A-GLANCE mark (e.g. U.S. Reg. No.714,411, registered on April 25,
1961).
Complainant makes over eight
billion dollars in annual sales, and expends substantial sums advertising and
promoting its AT-A-GLANCE mark. Promotion and sales under Complainant’s mark
include Internet sales and marketing from websites such as
<ataglance.com>, <ataglance.info>, <at-a-glance.com>,
<at-a-glance.net>, <at-a-glance.biz> and <at-a-glance.info>.
Respondent, Sam Redden, registered the <ataglance.net> domain name on April 13, 2000, and is not licensed or authorized to use the AT-A-GLANCE mark for any purpose. Respondent has not posted content at the disputed domain name since its registration over two and a half years ago.
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.
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.
Complainant has established rights in the AT-A-GLANCE mark through registration with the Principal Register of the USPTO, as well as through over eighty years of continuous and widespread use of the mark.
Respondent’s <ataglance.net>
domain name is confusingly similar
to Complainant’s AT-A-GLANCE mark.
Eliminating the hyphens in Complainant’s mark creates no notable
distinction between the mark and the domain name. See Nat’l Cable Satellite Corp. v. Black Sun Surf
Co., FA 94738 (Nat. Arb. Forum June 19, 2000) (holding
that the domain name <cspan.net>, which omitted the hyphen from the
trademark spelling, C-SPAN, is confusingly similar to Complainant's mark); see
also Ritz-Carlton Hotel Co. v.
Club Car Executive, D2000-0611 (WIPO Sept. 18, 2000) (finding that removing
a hyphen in the domain names is not sufficient to differentiate the domain
names from the mark).
Accordingly, the Panel finds that the <ataglance.net> domain name is confusingly similar to Complainant’s AT-A-GLANCE mark under Policy ¶ 4(a)(i).
Respondent registered the infringing <ataglance.net> domain name over two and a half years ago, and yet has never posted any content at the domain name. Respondent’s failure to utilize its infringing domain name is evidence that Respondent has no rights or legitimate interests in the domain name. See Vestel Elektronik Sanayi ve Ticaret AS v. Kahveci, D2000-1244 (WIPO Nov. 11, 2000) (finding that “merely registering the domain name is not sufficient to establish rights or legitimate interests for purposes of paragraph 4(a)(ii) of the Policy”); see also Ziegenfelder Co. v. VMH Enter., Inc., D2000-0039 (WIPO Mar. 14, 2000) (finding that failure to provide a product or service or develop the site demonstrates that Respondents have not established any rights or legitimate interests in the domain name).
Neither Respondent’s WHOIS contact
information nor any other evidence before the Panel supports a conclusion that
Respondent is commonly known by the name ATAGLANCE or <ataglance.net>. The Panel concludes that Respondent is not
commonly known by the name, evidence that it has no rights or legitimate
interests in the domain name. See RMO,
Inc. v. Burbridge, FA 96949 (Nat. Arb. Forum May 16, 2001) (Interpreting
Policy ¶ 4(c)(ii) "to require a showing that one has been commonly known
by the domain name prior to registration of the domain name to prevail"); see
also Gallup Inc. v. Amish Country
Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that Respondent
does not have rights in a domain name when Respondent is not known by the
mark).
Accordingly, the Panel finds that Respondent does not have rights or legitimate interests in the <ataglance.net> domain name under Policy ¶ 4(a)(ii).
Respondent’s passive holding of the
infringing <ataglance.net> domain
name for over two and a half years, without posting any original content,
evidences bad faith use and registration of the domain name. See Mondich & Am. Vintage Wine Biscuits, Inc. v. Brown, D2000-0004
(WIPO Feb. 16, 2000) (holding that the Respondent’s failure to develop its
website in a two-year period raises the inference of registration in bad
faith); see also Telstra Corp. v.
Nuclear Marshmallows, D2000-0003 (WIPO Feb. 18, 2000) (finding that “it is
possible, in certain circumstances, for inactivity by the Respondent to amount
to the domain name being used in bad faith”).
The Panel thus finds that
Respondent registered and used the <ataglance.net> domain name in bad faith, and that Policy ¶
4(a)(iii) is satisfied.
Having established all three elements required under ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <ataglance.net> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: February 7, 2003
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