Philippe Tenehaus v Telepathy, Inc.

Philippe Tenenhaus

COMPLAINANT,

vs.

Telepathy, Inc.

RESPONDENT.

DOMAIN NAME DISPUTE ADMINISTRATIVE DECISION
Forum File No.: FA0003000094355

________________________________________________________________

The above-entitled matter came on for an administrative hearing on

May 11, 2000 before the undersigned panel on the Complaint of Philippe Tenenhaus, hereafter "Complainant", against Telepathy, Inc. hereafter "Respondent". Complainant appears pro se. Susan C. Chaires and Jacqueline M. Sterling of Chaires & Associates represent the Respondent. Upon the written submitted record, the following decision is made:

PROCEDURAL FINDINGS

Domain Name: DAF .COM

Domain Name Registrar: Internet Names Worldwide. MelbournrIT

Domain Name Registrant: Telepathy, Inc.

Date of Domain Name Registration: January 11, 2000

Date Complaint filed: March 24, 2000

Date of Commencement of Administrative Proceeding in Accordance with Rule

2(a) and Rule 4(c): March 28, 2000

Due date for a Response: April 17, 2000.

Respondent’s Response was filed by email on April 17, 2000.

After reviewing the Complaint and determining it to be in administrative compliance, the NATIONAL ARBITRATION FORUM (THE FORUM) forwarded the Complaint to the Respondent on March 28, 2000 in compliance with Rule 2(a), and the administrative proceeding was commenced pursuant to Rule 4(c). In compliance with Rule 4(d), The Forum immediately notified Network Solutions, Inc., the INTERNET CORPORATION FOR ASSIGNED NAMES AND NUMBERS (ICANN) and the Respondent that the administrative proceeding had commenced. Respondent submitted a response to the Forum within twenty (20) days pursuant to Rule 5(a).

On January 11, 2000 Respondent Telepathy, Inc. registered the domain name "DAF.COM" with Domain Name Registrar Network Solutions, Inc., the entity that is the current Registrar of the domain name DAF.COM". By registering its domain name with the Registrar, Respondent agreed to resolve any dispute regarding its domain name through ICANN’s Rules for Uniform Domain Name Dispute Resolution Policy, and the Uniform Domain Name Dispute Resolution Policy.

FINDINGS OF FACT

The undisputed evidence establishes that:

1.Complainant is an individual and owner of the Domain Name "dafweb.com". Complainant has marketed on the Internet a software product entitled Dynamic Authentication Filter utilizing the acronym "DAF" since mid 1996. Complainant has not registered "DAF" as a trademark. Complainant admits that the domain name "DAF.COM " has not been available to him from the inception of his business.

2. The Respondent is a corporation engaged in the business of registering multiple domain names for sale to persons or businesses that utilize them to identify their name or products on the Internet and is the current Registrant of "DAF.COM".

3. Respondent acknowledges that it has no current plan or use for the domain name other than to sell it.

4. " DAF " is a nonexclusive name that is used in commerce by businesses other than Respondent.

5. Respondent’s current use of the domain name "DAF" does not conflict with or interfere with Complainant’s business.

6. Complainant has not established that the name "DAF" is exclusively identified with him, the software he sells or his business.

7. To prevail, Complainant must establish in the record that Respondent:

a. Registered a domain name that is "identical or confusingly similar to a trademark or service mark in which the complainant has rights"; and

b. Has "no rights or legitimate interests in respect of the domain name"; and

c. Has registered and is using the domain name in "bad faith".

8. Respondent does not dispute that "DAF.Com" may be confusingly similar to Complaint’s use of the term, but takes the position that the term "DAF" is an acronym and a generic term used by many others.

9. Complainant failed to meet its burden of showing that Respondent "registered and …used in bad faith" the domain name in violation of ICANN’s Uniform Domain Name Dispute Resolution Policy, Paragraph 4(b)(i), 4(b)(ii), (iii), or (iv).

10. We have concluded to not consider the materials pertaining to decisions of other panels submitted after this matter was referred to us on May 3, 2000.

Complainant’s prayer for relief requests that the domain name "DAF.COM" be transferred from Respondent Telepathy, Inc. to Complainant.

CONCLUSIONS

The undersigned certifies that the panel of three arbitrators acted independently and has no known conflict of interests to serve as Arbitrators in this proceeding. Having been duly selected, and being impartial, the undersigned makes the following findings and conclusions with the unanimous agreement of the panel:

1. Respondent acknowledges the domain name "DAF.COM" registered by Respondent on January 11, 2000, is so close as to be identical or confusingly similar to Complainant’s software product "DAF".

2. Complainant failed to show that he should be granted exclusive use of the domain name DAF, as many others use it and that it was not available to him at the time he commenced business utilizing the name

3. Complainant failed to show that Respondent is attempting to mislead customers or tarnish the name DAF to the detriment of the Complainant.

4. Complainant failed to show that Respondent has registered or used the domain name in bad faith.

DECISION

Based upon the above findings and conclusions, and pursuant to Rule 4(i), it is decided as follows:

THE UNDERSIGNED DIRECTS THAT THE DOMAIN NAME AS DAF.COM REGISTERED BY RESPONDENT REMAIN WITH RESPONDENT.

DATED: May 17, 2000 by Judge James P. Buchele (Ret.), Chief Arbitrator of the Panel.

Mr. Jeffrey M. Samuels

Mr. Neil A. Smith

Members of the Panel