Silver Platters v Scott McCoskery
Claim Number: FA0008000095501
The Complainant is Silver Platters LLC , Bellevue, WA, USA ("Complainant"). The Respondent is Scott McCoskery, Des Moines, WA, USA ("Respondent").
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is "silverplatters.com", registered with Network Solutions.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge, has no known conflict in serving as the panelist in this proceeding.
Tyrus R. Atkinson, Jr., Panelist.
Complainant submitted a Complaint to the National Arbitration Forum ("The Forum") electronically on August 29, 2000; The Forum received a hard copy of the Complaint on August 29, 2000.
On September 05, 2000, Network Solutions confirmed by e-mail to The Forum that the domain name "silverplatters.com" is registered with Network Solutions and that the Respondent is the current registrant of the name. Network Solutions has verified that Respondent is bound by the Network Solutions 4.0 registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s UDRP.
On September 6, 2000, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 26, 2000 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 firstname.lastname@example.org by e-mail.
On September 28, 2000, pursuant to Complainant’s request to have the dispute decided by a One Member panel, the Forum appointed Tyrus R. Atkinson, Jr. as Panelist.
The Complainant requests that the domain name be transferred from the Respondent to the Complainant.
Complainant operates three retail stores in Seattle, Washington, specializing in the sale of compact discs, DVDs, and accessories. Complainant has been in business since 1985. Silver Platters has been a registered trademark and service mark of Complainant since 1987.
Respondent is not, nor has he ever been affiliated with Silver Platters. Respondent registered "silverplatters.com" as a domain name on February 18th, 1999, knowing that Complainant was operating its business under the name Silver Platters.
Respondent operates the website, "silverplatters.com", in connection with attracting those with an interest in popular music. Complainant operates a business in the promotion and sale of popular music recordings and associated materials. Respondent's website displays a false image to the public of Complainant's retail operations.
Respondent offered to sell the domain name to Complainant for the sum of $5000.00.
Respondent is a Senior Network Analyst for a computer consulting firm located in Seattle, Washington. Respondent registered the name "silverplatters.com" with the intention of building a website and without intention of ever turning a profit from the use or sale of the domain name. The website is being developed by Respondent as a non-profit music review site where visitors may read reviews of music and post reviews. Respondent provides free e-mail on the website to certain friends and associates and has been doing so for about one year. Because of Respondent's position with the computer consulting firm, Respondent can host the website on existing servers that are maintained for other paying customers at no cost to the users of "silverplatters.com" or to Respondent.
Complainant initiated contact with Respondent. During the telephone conversation Complainant demanded that Respondent set a sales price for the domain name. Respondent responded with the sum of $5000.00 but Respondent did so out of frustration and with very little thought. Respondent has no interest in selling the domain name and wants to keep the domain name because Respondent is a music enthusiast.
1. Complainant operates retail stores in Seattle, Washington, under the name Silver Platters. The retail stores promote and sell music recordings and associated items.
2. Complainant holds Certificate of Registration Number 1433607 for the Trademark "Silver Platters" which was registered on March 24, 1987. Complainant holds Certificate of Registration Number 1492683 for the Service Mark "Silver Platters" which was registered on June 14, 1988.
3. Respondent registered the domain name "silverplatters.com" with Network Solutions on February 18, 1999.
4. Respondent is operating the website "silverplatters.com" in a popular music related enterprise.
5. Respondent is operating the website "silverplatters.com" as a non-profit enterprise.
6. Respondent stated a price to sell the domain name "silverplatters.com" to Complainant for the sum of $5000.00.
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 canceled 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
Respondent does not contest Complainant's allegations that the domain name "silverplatters.com" is identical or confusingly similar to the trade mark and service mark in which Complainant has rights. Respondent does not contest Complainant's asserted rights with respect to the Silver Platters mark. The domain name is identical to the Complainant's mark. Complainant has proved this element.
Rights or Legitimate Interests
Complainant contends that Respondent has no rights or legitimate interest with respect to the domain name "silverplatters.com". Complainant contends that Respondent is not affiliated with Silver Platters in any way. Respondent has never been commonly known by the domain name. Respondent knew or should have known of Complainant's mark prior to registering the domain name and knew or should have known that the use of the domain name was likely to tarnish the service mark and trademark owned by Complainant. Policy, Sec. 4(c). see Compangnie de Saint Gobain v. Com-Union Corp., D2000-0020(WIPO Mar.14, 2000); Charles Jourdan Holding AF v. AAIM, D2000-0403 (WIPO June 27, 2000). Complainant has proved this element.
Registration and Use in Bad Faith
Respondent contends that he registered the domain name in issue with the intention of developing a non-profit "music review site". Respondent contends that he had no intention of "turning a profit" from the use or sale of the domain name. Respondent contends that he is providing free e-mail service and the operation of the site is without any profit to Respondent. Respondent may make a showing that he is "...making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue." Policy, Sec. 4 (c)(1). The showing of Respondent must be measured against Complainant's showing that Respondent offered to sell the domain name to Complainant for the sum of $5000.00. This is not a case like Canal Image UK, Ltd. v. Vanitymail Services, Inc, FA 94946 (Nat.Arb.Forum July 18, 2000), wherein the Respondent offered to sell the domain name for $500,000.00 in a dubious attempt to dissuade the Complainant from further inquiry into purchasing the domain name. Nor is it a case where it can be found that simply because Complainant initiated contact inquiring about purchasing the domain name, this fact tends to weigh against a finding of bad faith. see General Machine Products Co. v. Prime Domains, FA 92531 (Nat.Arb.Forum Jan.26, 2000).
Respondent admits offering to sell the domain name to Complainant for the sum of $5000.00. Respondent's contention that he made the offer out of frustration and without much thought does not change the fact that the offer was made in an amount which seems not to be calculated as an attempt to dissuade Complainant by offering to sell for an outrageous price.
Respondent concedes that Complainant has rights in the mark Silver Platters. Respondent failed to make a showing that his use of the domain name will not tarnish the trademark or service mark here in issue. Complainant must prevail on this element.
Because the Complainant has established all three elements required by Rule 4(a) of the ICAAN Policy, it is decided to grant the relief requested. It is ordered that the domain name "silverplatters.com" be transferred from the Respondent to the Complainant.
Tyrus R. Atkinson, Jr.
Panelist Dated this 6th day of October, 2000.
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