Sanitech Corporation v. Dave
Paton
Claim Number: FA0703000935273
PARTIES
Complainant is Sanitech Corporation (“Complainant”), represented by William
Hannigan,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <sanitech.com>, registered with 000Dom.
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
electronically on March 12, 2007; the
National Arbitration Forum received a hard copy of the Complaint on March 12, 2007.
On March 13, 2007, 000Dom confirmed by e-mail to the National
Arbitration Forum that the <sanitech.com> domain name is
registered with 000Dom and that
Respondent is the current registrant of the name. 000Dom
has verified that Respondent is bound by the 000Dom
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 19, 2007, a Notification
of Complaint and Commencement of Administrative Proceeding (the “Commencement
Notification”), setting a deadline of April 9, 2007 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@sanitech.com by e-mail.
A timely Response was received and determined to be complete on April 9, 2007.
On April 16, 2007, pursuant to Complainant’s
request to have the dispute decided by a single-member Panel, the National
Arbitration 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
i.) Complainant owns a federal service mark registration for SANITECH. Respondent registered the domain name <sanitech.com>.
ii.) Respondent has no rights or legitimate interests in the domain name.
iii.) The domain name has been used in bad faith, but has not been registered in bad faith.
B. Respondent
Respondent raises defenses of concurrent court proceedings, laches and
acquiescence.
DISCUSSION AND FINDINGS
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 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;
(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.
While the Complainant alleges that the domain
name is being used in bad faith, Complainant also expressly admits that “The
domain name was not registered in bad faith.” Paragraph 4(a)(iii) of the Policy expressly
requires a showing of both
registration and use in bad
faith. As Complainant has not adequately
alleged, much less satisfied the requirements of ¶ 4(a)(iii), Complainant’s
request for transfer of its domain name must be denied. See
The Thread.com LLC v. Poploff,
D2000-1470 (WIPO Jan. 5, 2001) (finding that the respondent “did not have the
requisite bad faith when he registered the Domain Name, which is an express
requirement of the Policy”); see also Creative
Paradox LLC v. Talk Am., FA 155175 (Nat. Arb. Forum June 23, 2003) (finding
no bad faith registration of the domain name where the Panel found evidence
that the respondent was authorized to register the disputed domain name by the complainant).
DECISION
Having failed to establish both bad faith elements required under paragraph
4(a)(iii) of the ICANN Policy, the Panel concludes that relief shall be DENIED.
DAVID A. EINHORN, Panelist
Dated: April 30, 2007
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