HealthAccess, Inc. d/b/a Viquest v. Osita
Juwah
Claim Number: FA0301000143700
PARTIES
Complainant
is HealthAccess, Inc. d/b/a Viquest, Greenville, NC
(“Complainant”) represented by David
Stillerman. Respondent is Osita D Juwah, Washington, DC (“Respondent”).
REGISTRAR AND DISPUTED DOMAIN NAME
The
domain name at issue is <viquest.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.
David
A. Einhorn appointed as Panelist.
PROCEDURAL HISTORY
Complainant
submitted a Complaint to the National Arbitration Forum (the “Forum”)
electronically on January 29, 2003; the Forum received a hard copy of the
Complaint on February 3, 2003.
On
February 3, 2003, Network Solutions, Inc. confirmed by e-mail to the Forum that
the domain name <viquest.com>
is registered with Network Solutions, Inc. and that the 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
February 11, 2003, a Notification of Complaint and Commencement of
Administrative Proceeding (the “Commencement Notification”), setting a deadline
of March 3, 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@viquest.com by e-mail.
A
timely Response was received and determined to be complete on February 17, 2003.
On February 21, 2003, pursuant to Complainant’s request
to have the dispute decided by a single-member
Panel, the Forum appointed David A. Einhorn
as Panelist.
RELIEF SOUGHT
Complainant
requests that the domain name be transferred from Respondent to Complainant.
PARTIES’ CONTENTIONS
A.
Complainant
[a.]
The Complainant (as successor in interest to HealthQuest Horizons, Inc.) owns
the rights to the Service Mark VIQUEST DESIGN (Reg. No. 2,376,882) granted to
it by the United States Patent and Trademark Office.
[b.]
At the time of the filing of this complaint, the Respondent was not making a bona
fide offering of goods or services through the website. Since November 12, 2001 the Respondent has failed
to make any known efforts to utilize the website for either business or
personal reasons. The website has
remained “under construction” since the date of purchase by the Respondent.
B.
Respondent
[a.] The Respondent coined the name “viquest”
from the words, “vision” and “quest,” thus “visionquest” to be used
within the context of the concept of a “global village.”
[b.] It has only been 14 months since the domain
name <viquest.com> was
registered by the Respondent on November 12, 2002 and during this period, the
website concept has been vetted, developed, designed and finally uploaded to
the public domain.
[c.] Furthermore, VIQUEST CORPORATION through <viquest.com> is not presently
engaged in, and has no plans in the future to conduct business in the
medical/healthcare field.
[d.] The domain name, <viquest.com> was not and is not for sale; and it was never
offered to the Complainant for purchase or trade.
FINDINGS
[a.] The Respondent registered the domain name <viquest.com>
with VeriSign/Network Solutions (hereinafter “the Registrar”) on November 12,
2001. The Respondent purchased the rights to the domain name <viquest.com> without any
knowledge of the Complainant.
[b.] After the Respondent had acquired the rights
to the domain name <viquest.com>,
the Respondent proceeded to reserve the business name, VIQUEST CORPORATION, in
the District of Columbia on February 25, 2002 and completed the incorporation
of the legal entity VIQUEST CORPORATION on April 16, 2002.
[c.] The Respondent through VIQUEST CORPORATION
has simultaneously continued to develop the business VIQUEST CORPORATION and
its website at the domain name <viquest.com>
throughout the period beginning November 12, 2001 and up to the time of the
filing of the complaint and this response.
[d.] On January 26, 2003, the Respondent, acting
as an agent for VIQUEST CORPORATION, contracted for web-hosting service with
ONEWORLD HOSTING.
[e.] The uploading of website content commenced
on January 26, 2003 and was completed on February 8, 2003 with the upload of
the page <viquest.com/inde.htm> and <www.viquest.com>.
[f.] On February 10, 2003, the Respondent, acting
as an agent for VIQUEST CORPORATION, contracted for Search Engine Services with
NETMECHANIC.
[g.] E-mail messages announcing the new site have
been and continue to be sent out to VIQUEST CORPORATION’s target market
audience.
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 domain name <viquest.com> is nearly identical to Complainant’s mark
VIQUEST DESIGN, except for the elimination of a slight stylized embellishment
present in the registered service mark.
Therefore, Complainant has satisfied paragraph 4(a)(i) of the Policy.
Respondent has rights or legitimate
interests in the domain name.
Respondent has shown that it vetted, developed, designed and uploaded
the content of the website to the public domain all prior to receiving
notification of the commencement of the administrative proceeding. Thus, Respondent has shown demonstrable
preparations to use the domain name in connection with a bona fide
offering of goods or services prior to notice of the dispute. Therefore, Complainant has not satisfied paragraph 4(a)(ii) of the
Policy.
Because the Panel has determined that
Respondent has a right or legitimate interest in respect to the domain name at
issue, there is no need to determine whether said domain name was registered
and is being used in bad faith. See David J. Joseph Company v. Richard F. Barry,
D2000-1418 (WIPO Jan. 2, 2001).
DECISION
As
the Complainant has not proven that the Respondent lacks rights or legitimate
interests in respect to the domain name <viquest.com>,
the Complainant’s request for transfer to it of said domain name is hereby dismissed.
David A. Einhorn, Panelist
Dated: March 7, 2003