Perot Systems Corporation v. Perot.net
Claim Number: FA0007000095312
The Complainant is Perot Systems Corporation, Dallas, TX, USA ("Complainant"). The Respondent is Perot.net, Cherry Hill, NJ, USA ("Respondent").
REGISTRAR AND DISPUTED DOMAIN NAME(s)
The domain name at issue is "PEROT.NET", registered with Network Solutions Inc ("NSI").
The Panelist James P. Buchele certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as the panelist in this proceeding.
Complainant submitted a Complaint to the National Arbitration Forum ("The Forum") electronically on 07/28/2000; The Forum received a hard copy of the Complaint on 07/28/2000.
On 07/31/2000, NSI confirmed by e-mail to The Forum that the domain name "PEROT.NET" is registered with NSI and that the Respondent is the current registrant of the name. NSI has verified that Respondent is bound by the Network Solutions Service Agreement Version 5.0 and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANNís UDRP.
On 07/31/2000, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of 08/21/2000 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via e-mail, post and fax, and to all entities and persons listed on Respondentís registration as technical, administrative and billing contacts by e-mail. It was also emailed to email@example.com.
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 August 23, 2000, pursuant to Complainantís request to have the dispute decided by a Single Member panel, The Forum appointed James P. Buchele 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 Uniform 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 Forumís Supplemental Rules and any rules and principles of law that the panel deems applicable, without the benefit of any Response from the Respondent.
The Complainant requests that the domain name be transferred from the Respondent to the Complainant.
The Complainant asserts that the domain name is confusingly similar to its trademark, that the Respondent has no rights or legitimate interest in the domain name, and that the domain name was registered and used in bad faith.
The Complainant contends that when Internet users seeking the Complainantís site reach the Respondentís website they may conclude that the Complainantís business is associated with the web development services advertised on the site. The Complainant asserts that the poor quality of the site, and possibly these services, may be imputed to the Complainant.
The Respondent did not submit a response in this ICANN proceeding.
The Complainant owns the following registered trademarks and trademark applications:
PEROT SYSTEMS No. 2, 106,634 Registered: Oct. 21, 1997
PEROTSYSTEMS No. 2,271,524 Registered: Aug. 24, 1999
PEROT.COM 75/625433 pending PEROTSYSTEMS.COM 75/625432 pending
The Complainant uses these marks in connection with its website development, hosting, and maintenance services.
The website that corresponds to the domain name in question displays an "under construction" page featuring banner advertisements for web hosting and development services.
Because the Respondent has failed to submit a response, the Panel accepts as true all allegations alleged in the Complaint. See Quixtar Investments, Inc. v. Smithberger and QUIXTAR-IBO, D2000-0138 (WIPO Apr. 19, 2000). The Panel may also draw any inferences it believes are appropriate given the Respondentís failure to respond. ICANN Rule 14.b.
Paragraph 4.a. of the ICANN Uniform Domain Name Dispute Policy ("Policy") requires that the 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 the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(2) the 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.
Identical and/or Confusingly Similar
The Complainant has rights in the marks PEROT SYSTEMS, PEROTSYSTEMS, PEROT.COM, and PEROTSYSTEMS.COM.
The said domain name is clearly intended to be an abbreviation of or reference to the Complainantís name. Given the similarity of the Complainantís marks with the domain name, consumers will presume the domain name is affiliated with the Complainant. The Panel concludes that the domain name in question is confusing similar to the Complainantís mark. See Ty, Inc. v. O.Z. Names, D2000-0370 (WIPO June 27, 2000) (finding that the domain names <beanybaby.com>, <beaniesbabies.com>, <beanybabies.com> are confusingly similar to Complainantís mark "Beanie Babies").
Rights or Legitimate Interests
There is no evidence that would indicate that Respondent has any rights or legitimate interests in the domain name in question.
The Respondent is not commonly known by the Complainantís established marks that form the Respondentís domain name. Policy 4.c.(ii).
The Respondent is using the domain name to link users to a site containing an "under construction" announcement that is surrounded by banner advertisements. The Panel concludes that the Respondent has made no offering of bona fide goods and services nor is using the domain name in a legitimate noncommercial manner. Policy 4.c.(i), (iii).
Since the Respondent has made no showing with respect to any of the above factors, the panel finds that Respondent has no rights or legitimate interest in the domain name.
Registration and Use in Bad Faith
The Complainant contends that the Respondent registered and used the domain name in bad faith.
The domain name in question is obviously connected with the Complainantís marks. Given the slight variation of the Respondentís domain name from the Complainantís registered marks, the panel concludes that the Respondent had knowledge of the Complainantís well-known name and/or the Complainantís marks upon registering the domain name. See Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding that the domain name in question is "so obviously connected with the Complainant and its products that its very use by someone with no connection with the Complainant suggests opportunistic bad faith).
The Respondent is attracting Internet users to a website, for commercial gain, by creating a likelihood of confusion with the Complainantís mark as to the source, sponsorship, or endorsement of the Respondentís website. Policy 4.b.(iv). The Respondent has linked the domain name to a web page that contains advertisements for a company that competes with the Complainant. Linking users to advertising is evidence of bad faith. See Bama Rags, Inc. v. Zuccarini, FA 94380 (Nat. Arb. Forum May 8, 2000) (finding bad faith where the Respondent attracted users to advertisements).
Based on the above, the Panel determines that the Respondent registered and used the domain name in bad faith.
Having established all three elements required by the ICANN Policy Rule 4(a), it is the decision of the panel that the requested relief be granted.
Accordingly, for all of the foregoing reasons, it is ordered that the domain names, "PEROT.NET" be transferred from the Respondent to the Complainant.
James P. Buchele
Dated: August 29, 2000
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