ELIGIBILITY REQUIREMENTS DISPUTE
RESOLUTION POLICY
DECISION
C. R. Bard, Inc. v. Titan Net d/b/a Titan
Claim Number: FA0509000563782
PARTIES
Complainant
is C.R. Bard, Inc. (“Complainant”), represented by Roberta S. Bren,
730 Central Ave., Murray Hill, NJ 07974.
Respondent is Titan Net d/b/a Titan (“Respondent”), Net
Kenyatta Ave., P.O. Box 4276-30100, Eldoret, KENYA 30100.
REGISTRAR AND
DISPUTED REGISTERED NAMES
The
Registered Names at issue are <crbardinc.name>, <bardurlogy.name>,
<bardcr.name>, <crbard.name>, <bardport.name>
and <bardaccess.name> registered with Intercosmos Media Group,
Inc. d/b/a Directnic.com.
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.
Honorable
Karl V. Fink (Ret.) as Panelist.
PROCEDURAL
HISTORY
Complainant
submitted a Complaint to the National Arbitration Forum (“the Forum”)
electronically on September 19, 2005; the Forum received a hard copy of the
Complaint on September 19, 2005.
On
September 19, 2005, Intercosmos Media Group, Inc. d/b/a Directnic.com confirmed
by e-mail to the Forum that the Registered Names <crbardinc.name>,
<bardurlogy.name>, <bardcr.name>, <crbard.name>,
<bardport.name> and <bardaccess.name> are registered
with Intercosmos Media Group, Inc. d/b/a Directnic.com and that Respondent is
the current registrant of the Registered Names. Intercosmos Media Group, Inc. d/b/a Directnic.com has verified
that Respondent is bound by the Intercosmos Media Group, Inc. d/b/a
Directnic.com registration agreement and has thereby agreed to resolve
registered name disputes brought by third parties in accordance with the
Eligibility Requirements Dispute Resolution Policy (“ERDRP”).
On
September 22, 2005 a Notification of Complaint and Commencement of
Administrative Proceeding (the “Commencement Notification”), setting a deadline
of October 12, 2005 by which Respondent could file a Response to the Complaint,
was transmitted to Respondent in compliance with 2(a) of the Rules of Procedure
for the Eligibility Requirements Dispute Resolution Policy (the “ERDRP Rules”)
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
October 19, 2005, pursuant to ERDRP Rule 6(b), the Forum appointed Honorable
Karl V. Fink (Ret.) as the single Panelist.
Having
reviewed the communications records, the Administrative Panel (the “Panel”)
finds that the Forum has discharged its responsibilities under Paragraph 2(a)
of the ERDRP Rules. Therefore, the
Panel may issue its decision based on the documents submitted and in accordance
with the ERDRP, ERDRP Rules, the Forum’s ERDRP 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 Registered Names be cancelled pursuant to ERDRP 5(f)(i)(A).
A. Complainant
Complaint
asserts that its legal name is C.R. Bard Inc.
Complainant
contends that Respondent registered the <crbardinc.name>, <bardurlogy.name>,
<bardcr.name>, <crbard.name>, <bardport.name>
and <bardaccess.name> domain names in violation of the Eligibility
Requirements because of the following reasons:
1. the names corresponding to the Registered
Names are not Respondent’s legal names pursuant to ERDRP ¶ 4(b)(i).
2. the names corresponding to the Registered
Names are not the names of fictional characters in which Respondent has
trademark or service mark rights pursuant to ERDRP ¶ 4(b)(ii).
3. Respondent is not commonly known by the
names corresponding to the Registered Names pursuant to ERDRP ¶ 4(b)(iii).
B. Respondent
No
Response was received.
Complainant
instituted this action as C.R. Bard, Inc. pursuant to ¶ 4(b)(ii) of the ERDRP.
Respondent
registered the <crbardinc.name> and <bardurlogy.name>
domain names on August 19, 2005 and the <bardcr.name>, <crbard.name>,
<bardport.name> and <bardaccess.name> domain names on
August 22, 2005. Respondent has not
presented any evidence to show that its legal name includes “bards” or any
combination thereof.
Complainant
has provided print outs of WHOIS records for the domain names. Complainant has also provided print outs of
Respondent’s website, showing that the domain names are being used for a search
engine and a website containing links to various news articles.
Paragraph
15(a) of the ERDRP 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 ERDRP
Rules and draw such inferences it considers appropriate pursuant to paragraph
14(b) of the ERDRP Rules.
Paragraph
4(b) of the ERDRP requires that the Complainant prove each of the following
elements in order to establish that the Registered Name was registered in
violation of the Eligibility Requirements and obtain an order that a Registered
Name should be cancelled:
(1) the name corresponding to the Registered
Name is not the legal name of Respondent; and
(2) the name corresponding to the Registered
Name is not the name of a fictional character in which the Respondent has
trademark or service mark rights; and
(3) the Respondent has not been commonly
known by the name corresponding with the Registered Name.
It
is assumed that Respondent’s legal name is Titan Net. There is no evidence indicating otherwise. Therefore, Respondent’s registration of the <crbardinc.name>,
<bardurlogy.name>, <bardcr.name>, <crbard.name>,
<bardport.name> and <bardaccess.name> domain names
does not meet this Eligibility Requirement, and ERDRP ¶ 4(b)(i) has been
satisfied.
Name of Fictional Character
There
is no evidence indicating that Respondent owns trademark and service mark
rights in any fictional character referred to as “crbardinc,” “bardurlogy,”
“bardcr,” “crbard,” “bardport” or “bardaccess.” Therefore, Respondent does not meet this Eligibility Requirement,
and ERDRP ¶ 4(b)(ii) has been satisfied.
Commonly Known As
Respondent
is known to this Panel only as Titan Net.
There is no evidence in the record, nor has Respondent come forward to
establish that it is commonly known as “crbardinc,” “bardurlogy,” “bardcr,”
“crbard,” “bardport” or “bardaccess.”
Therefore, Respondent does not meet this Eligibility Requirement in
relation to the <crbardinc.name>, <bardurlogy.name>, <bardcr.name>,
<crbard.name>, <bardport.name> and <bardaccess.name>
domain names and ERDRP ¶ 4(b)(iii) has been satisfied.
The
Panels find that Respondent has not met any of the above Eligibility
Requirements, and because Complainant asks only that the Registered Names be
cancelled pursuant to ERDRP ¶ 5(f)(i)(A), a determination of Complainant’s
eligibility is not required and the Registered Names may be cancelled.
In
accordance with the ERDRP Rules, the relief sought by Complainant is hereby GRANTED.
The
Panel orders that the registration for the Registered Names, <crbardinc.name>,
<bardurlogy.name>, <bardcr.name>, <crbard.name>,
<bardport.name> and <bardaccess.name>, be CANCELLED.
Honorable Karl V. Fink (Ret.), Panelist
Dated: October 28, 2005
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