Western States Tower, LLC v. Rapid
Broadband c/o Quin Rescigno
Claim
Number: FA0311000208586
Complainant is Western States Tower, LLC, 4900A Mill
Street #11, Reno, NV 89502 (“Complainant”).
Respondent is Rapid Broadband c/o Quin Rescigno, 9650 Gateway Drive #100, Reno, NV 89521
(“Respondent”).
REGISTRAR
AND DISPUTED DOMAIN NAMES
The
domain names at issue are <westernstatestower.com> and <westernstatestower.net>,
registered with Go Daddy Software, 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. Carmody, Esq., as Panelist.
Complainant
submitted a Complaint to the National Arbitration Forum (the "Forum")
electronically on November 5, 2003; the Forum received a hard copy of the
Complaint on November 14, 2003.
On
November 5, 2003, Go Daddy Software, Inc. confirmed by e-mail to the Forum that
the domain names <westernstatestower.com> and <westernstatestower.net>
are registered with Go Daddy Software, Inc. and that Respondent is the current
registrant of the names. Go Daddy Software, Inc. has verified that Respondent
is bound by the Go Daddy Software, 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 17, 2003, a Notification of Complaint and Commencement of
Administrative Proceeding (the "Commencement Notification"), setting
a deadline of December 8, 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@westernstatestower.com
and postmaster@westernstatestower.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
December 15, 2003, pursuant to Complainant's request to have the dispute
decided by a single-member Panel, the Forum appointed James A. Carmody, Esq.,
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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Our company name is Western States Tower,
and the domain name is identical with the “dot com” and the “dot net”
extensions. A trademark of the company
name has been applied for; the filing has been accepted by the USPTO.
2. Rapid Broadband has no use for our
company name. They may perceive us as a
competitor and may be attempting to divert traffic for their own purposes. The
domain name is currently parked with no activity since the registration
date. Rapid Broadband has not been
known as Western States Tower.
3. Rapid Broadband has registered
Westernstatestower.com and westernstatestower.net in bad faith. We believe that Rapid Broadband has violated
the UDNDR and ICANN policy 4(b) sections i, ii, iii, as stated below.
Respondent
has registered the domain name primarily for the purpose of disrupting the
business of Western States Tower by usurping our company name precluding us
from using the dot com address for e-mail and our website.
Respondent
has created a likelihood of confusion with the Complainant’s mark as to the
source, sponsorship, affiliation, or endorsement of Respondent’s web site or
location or of a product or service on Respondent’s web site or location by
precluding Western States Tower from the use of our trademark name as our
website address. Prospects looking for
Western States Tower would not find us on line and be directed to a non
functional site or that of a disinterested third party, impinging on our ability
to conduct business in a normal fashion.
B. Respondent failed to submit a Response in
this proceeding.
Complainant
asserts that it is a registered business in the State of Nevada that operates
as WESTERN STATES TOWER, LLC.
Complainant asserts that it has applied for registration of an identical
mark for use in connection with its tower construction services.
Respondent
registered the disputed domain names on September 24, 2003. There is no evidence in the record of
Respondent’s use of the names.
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.
Although
Complainant has failed to provide even superficial evidence of registration or
use of the WESTERN STATES TOWER mark, in the absence of a Response, the Panel
will accept Complainant’s assertions 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 Smart Design LLC v. Hughes, D2000-0993 (WIPO
Oct. 18, 2000) (holding that ICANN Policy ¶ 4(a)(i) does not require
Complainant to demonstrate ‘exclusive rights,’ but only that Complainant has a
bona fide basis for making the Complaint in the first place); 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”).
Therefore,
Complainant has satisfied Policy ¶ 4(a)(i).
Complainant has
failed to state a basis for Respondent’s lack of rights or legitimate interests
in respect to the disputed domain names.
Specifically, Complainant states, “[Respondent] may perceive us
as a competitor and may be attempting to divert traffic for their own
purposes [emphasis added].” By using
the word “may”, Complainant is merely asserting a possibility.
Thus, by failing
to assert that Respondent, in fact, lacks rights or legitimate interests, the
Panel must find that Complainant has not established Policy ¶ 4(a)(ii).
Complainant
asserts, under Policy ¶¶ 4(b)(ii) & (iii), that Respondent registered the
domain names to prevent the owner of a mark from reflecting the mark in a
corresponding domain name, and that Respondent has registered the names
primarily to disrupt the business of a competitor. See Harcourt, Inc.
v. Fadness, FA 95247 (Nat. Arb. Forum Sept. 8, 2000) (finding that one
instance of registration of several infringing domain names satisfies the
burden imposed by the Policy ¶ 4(b)(ii)); see also Southern Exposure v. Southern Exposure, Inc., FA 94864 (Nat. Arb.
Forum July 18, 2000) (finding that Respondent registered the domain name in
question to disrupt the business of Complainant, a competitor of Respondent).
Likewise,
Complainant asserts that Respondent has intentionally attempted to attract, for
commercial gain, Internet users to Respondent’s website by creating a
likelihood of confusion with Complainant’s mark. See Perot Sys. Corp.
v. Perot.net, FA 95312 (Nat. Arb. Forum Aug. 29, 2000) (finding bad faith
where the domain name in question is obviously connected with Complainant’s
well-known marks, thus creating a likelihood of confusion strictly for
commercial gain); see also Identigene,
Inc. v. Genetest Lab., D2000-1100 (WIPO Nov. 30, 2000) (finding bad faith
where Respondent used the domain name to resolve to a website that was likely
to confuse Internet users as to its source because the site offered similar
services as Complainant).
However, having
determined that Complainant has not met its burden with regard to Policy ¶
4(a)(ii), the Panel declines to make a determination of bad faith under Policy
¶ 4(a)(iii).
Having failed to
establish at least one of the three elements required under the ICANN Policy,
the Panel concludes that relief shall be DENIED.
Accordingly,
the Complaint is DISMISSED.
James A. Carmody, Esq., Panelist
Dated:
December 22, 2003
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