Coriolis Telecom v. The Coriolis Group,
Inc.
Claim
Number: FA0302000146624
Complainant is
Coriolis Telecom, Nanterre, FRANCE (“Complainant”) represented
by Mark Lebow of Young & Thompson. Respondent is Robert
Wolpert The Coriolis Group, Inc., Scottsdale, AZ, USA (“Respondent”).
REGISTRAR
AND DISPUTED DOMAIN NAME
The
domain name at issue is <coriolis.com> 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.
James
A. Crary as Panelist.
Complainant
submitted a Complaint to the National Arbitration Forum (the "Forum")
electronically on February 25, 2003; the Forum received a hard copy of the
Complaint on February 28, 2003.
On
February 26, 2003, Network Solutions, Inc. confirmed by e-mail to the Forum
that the domain name <coriolis.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
March 5, 2003, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
March 25, 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@coriolis.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
April 2, 2003, pursuant to Complainant's request to have the dispute decided by
a single-member Panel, the Forum appointed James A. Crary 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 <coriolis.com>
domain name is identical to Complainant’s CORIOLIS mark.
2. Respondent does not have any rights or
legitimate interests in the <coriolis.com> domain name.
3. Respondent registered and used the <coriolis.com>
domain name in bad faith.
B. Respondent failed to submit a Response in
this proceeding.
Complainant
holds a trademark registration with the United States Patent and Trademark
Office (“USPTO”) for the CORIOLIS mark (Reg. No. 2,667,531 registered on
December 31, 2002) related to telecommunications goods and services. The Complaint
filed by Complainant in this proceeding is extremely brief and does not put
forth any factual allegations regarding Respondent’s use of the disputed <coriolis.com> domain name.
Respondent
registered the disputed domain name on June 28, 1994.
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 its rights in the CORIOLIS mark through registration with the
USPTO.
Respondent’s <coriolis.com> domain name is identical to Complainant’s
mark because the disputed domain name appropriates Complainant’s entire
CORIOLIS mark and merely adds the generic top-level domain (gTLD) “.com” to the
end of the mark. The inclusion of a gTLD is not relevant when determining
whether a domain name is confusingly similar to a mark pursuant to Policy ¶
4(a)(i). Thus, the disputed domain name and Complainant’s mark are identical
for the purposes of the Policy. See
Pomellato S.p.A v. Tonetti, D2000-0493 (WIPO July 7, 2000) (finding
<pomellato.com> identical to Complainant’s mark because the generic
top-level domain (gTLD) “.com” after the name POMELLATO is not relevant); see
also Rollerblade, Inc. v. McCrady,
D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name
such as “.net” or “.com” does not affect the domain name for the purpose of
determining whether it is identical or confusingly similar).
The Panel finds
that Complainant has established Policy ¶ 4(a)(i).
Respondent has
not come forward with a Response in this proceeding. Therefore, the Panel is
permitted to make reasonable inferences in favor of Complainant and accept the
allegations in the Complaint as true. See Do the Hustle, LLC v. Tropic Web,
D2000-0624 (WIPO Aug. 21, 2000) (“Failure of a respondent to come forward to
[contest complainant’s allegations] is tantamount to admitting the truth of
complainant’s assertion in this regard”); 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”).
Furthermore,
Respondent has failed to invoke any circumstances that could demonstrate rights
to or legitimate interests in the disputed domain name. When Complainant
asserts a prima facie case against Respondent, the burden of proof
shifts to Respondent to show that it has rights to or legitimate interests in
the disputed domain name. See G.D. Searle v. Martin Mktg., FA 118277
(Nat. Arb. Forum Oct. 1, 2002) (holding where a Complainant has asserted that
Respondent has no rights or legitimate interests with respect to the domain
name it is incumbent on Respondent to come forward with concrete evidence
rebutting this assertion because this information is “uniquely within the
knowledge and control of the respondent”); see also Do The Hustle, LLC v. Tropic
Web, D2000-0624 (WIPO Aug. 21, 2000) (finding that once Complainant
asserts that Respondent has no rights or legitimate interests with respect to
the domain, the burden shifts to Respondent to provide credible evidence that
substantiates its claim of rights and legitimate interests in the domain name).
Through its own
investigation, the Panel has discovered that the <coriolis.com>
domain name does not currently resolve to a website. The Panel finds that the
combination of Respondent’s failure to respond in this proceeding and the
domain name’s failure to resolve to a website demonstrate that Respondent lacks
all rights to or legitimate interests in the disputed domain name pursuant to
Policy ¶ 4(a)(ii). See Pharmacia
& Upjohn AB v. Romero, D2000-1273 (WIPO Nov. 13, 2000) (finding no
rights or legitimate interests where Respondent failed to submit a Response to
the Complaint and had made no use of the domain name in question); see also 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”).
Respondent has
provided no proof and there is no evidence in the record to establish that
Respondent is commonly known by CORIOLIS or <coriolis.com>.
Therefore, Respondent has failed to establish its rights to or legitimate
interests in the disputed domain name pursuant to Policy ¶ 4(c)(ii). See 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); see also Compagnie de Saint Gobain v. Com-Union Corp.,
D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where
Respondent was not commonly known by the mark and never applied for a license
or permission from Complainant to use the trademarked name).
The Panel finds
that Complainant has established Policy ¶ 4(a)(ii).
With regard to
bad faith registration and use, the Complaint alleges:
c. The
domain name coriolis.com was registered by Respondent and used in bad faith:
i.
Respondent
registered or acquired the domain name primarily for the purpose of selling,
renting, or otherwise transferring the domain name registration to the
Complainant who is the owner of the trademark, or to a competitor of the
Complainant, for valuable consideration in excess of Respondent’s documented
out-of-pocket costs directly related to the domain name;
ii.
Respondent
registered the domain name in order to prevent Complainant from reflecting the
mark in a corresponding domain name;
iii.
Respondent
registered the domain name primarily for the purpose of disrupting the business
of Complainant, a competitor; and/or [sic]
Complainant
appears to have copied significant portions of the Policy into its Complaint to
prove Respondent’s bad faith registration and use of the <coriolis.com>
domain name. However, our Panels have consistently held that bald assertions
are not sufficient to establish a prima facie case of bad faith
registration and use. See 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 Respondent acted in bad
faith); see also PRL USA Holdings, Inc. v. Polo, D2002-0148 (WIPO April
29, 2002) (finding that because Complainant failed to provide any factual
allegations as to the nature of use of the disputed domain name, Complainant
failed to prove that the Respondent’s domain names were being used in bad
faith).
Under the
Policy, Complainant bears the initial burden of presenting a sufficient prima
facie case with regard to each of Policy ¶¶ 4(a)(i), 4(a)(ii) and
4(a)(iii). Complainant asserts that Respondent registered and used the disputed
domain name in bad faith but Complainant does not support its assertions with
any evidence, statements or proof. See Do the Hustle v. Tropic Web,
D2000-0624 (WIPO August 21, 2000) (finding that paragraph 4(a) of the Policy
sets out three elements implying that Complainant has the burden of proof as to
each of the three elements); see also DR. S.A. v.
aunomdelarose.com, D2001-0666 (WIPO August 16, 2001) (“A
Complainant should never assume that simply filing a stereotype generic
Complaint will have the effect of relieving them of their burden, even when
there is no Response filed by the Respondent”).
Despite the fact
that Respondent did not respond in this proceeding and the subsequent
presumption in favor of Complainant, the Complaint must provide some evidence
of bad faith registration and use on the part of Respondent. In its Complaint,
Complainant has simply parroted the portions of the Policy that benefit
Complainant; therefore, the Complainant has failed to establish a prima
facie case of Respondent’s bad faith registration and use. See
Caterpillar Inc. v. Off Road Equip. Parts, FA 95497 (Nat. Arb. Forum Oct. 10, 2000) (refusing to find bad faith
registration where the Complainant failed to submit any evidence that the
domain name was registered in bad faith); see also VeriSign Inc. v. VeneSign C.A., D2000-0303 (WIPO June 28, 2000)
(finding that the Respondent’s default does not automatically lead to a ruling
for the Complainant).
The Panel finds
that Complainant has failed to establish Policy ¶ 4(a)(iii).
Regarding Policy
¶¶ 4(a)(i), 4(a)(ii) and 4(a)(iii), the Policy states that “the complainant
must prove that each of these three elements are present.” Complainant has failed
to establish a prima facie case for Respondent’s bad faith registration
and use of the <coriolis.com> domain name. Thus, the Complaint
fails.
Having failed to
establish all three elements required under ICANN Policy, the Panel concludes
that relief shall be DENIED.
Accordingly, it
is Ordered that the <coriolis.com> domain name REMAIN with
Respondent.
James A. Crary, Panelist
Dated:
April 18, 2003
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