Complainant is Morgantown Mall Assocs. Ltd. P’ship, Columbus, OH, USA ("Complainant") represented by George Schmidt, of Morgantown Mall Assocs. Ltd. P’ship. Respondent is morgantownmall.com, Rio, Brazil ("Respondent").

The domain name at issue is <morgantownmall.com> registered with Network Solutions.

On June 26, 2001, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed James P. Buchele as Panelist. 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.

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on May 29, 2001; the Forum received a hard copy of the Complaint on May 22, 2001.

On June 1, 2001, Network Solutions confirmed by e-mail to the Forum that the domain name <morgantownmall.com> is registered with Network Solutions and that Respondent is the current registrant of the name. Network Solutions has verified that Respondent is bound by the Network Solutions 5.0 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 June 1, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of June 21, 2001 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@morgantownmall.com by e-mail.

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.

Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "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 Forum’s 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 domain name be transferred from the Respondent to the Complainant.

A. Complainant

The <morgantownmall.com> domain name is confusingly similar to Complainant’s registered mark.

Respondent has no rights or legitimate interests in the <morgantownmall.com> domain name.

Respondent registered and used the <morgantownmall.com> domain name in bad faith.

B. Respondent

Since 1990, Complainant has used its MORGANTOWN MALL mark in connection with its retail location located in Morgantown, West Virginia. Complainant has expended substantial sums of money promoting the MORGANTOWN MALL mark. The impact of the Morgantown Mall in its neighboring community has been tremendous, as it contributes extensively to the city’s tax base.

The record of Respondent’s registration of the <morgantownmall.com> domain name is dated May 24, 2001. Registrant information was not available when Complainant submitted the Complaint, electronically, on May 22, 2001. Upon inquiry, by the Forum’s Case Coordinator, it was discovered that Respondent’s registration information indicated a May 24, 2001 date of registration. Complainant timely filed an amended Complaint to include the detailed registration information of Respondent.

Paragraph 15(a) of 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."

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 Rules.

Paragraph 4(a) of the 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.

Complainant has established that it has common law rights in the MORGANTOWN MALL mark, as Complainant has been engaged in extensive use of the mark, in connection with its retail services, since 1990. See Great Plains Metromall, LLC v. Creach, FA 97044 (Nat. Arb. Forum May 18, 2001) (finding that the Uniform Domain Name Dispute Resolution Policy does not require "that a trademark be registered by a governmental authority for such rights to exist"); see also Passion Group Inc. v. Usearch, Inc., AF-0250 (eResolution Aug. 10, 2000) (finding that Complainant established sufficient rights by virtue of its distribution and advertising to enable it, at common law, to prevent another magazine by the same name from being passed off as that of Complainant. Thus Complainant established that it ‘has rights’ under the ICANN Policy).

The <morgantownmall.com> domain name is identical to Complainant’s MORGANTOWN MALL mark. See American Golf Corp. v. Perfect Web Corp., D2000-0908 (WIPO Oct. 23, 2000) (finding that the domain name <americangolf.net> is identical and confusingly similar to Complainant’s AMERICAN GOLF marks); see also Croatia Airlines v. Kijong, AF-0302 (eResolution Sept. 25, 2000) (finding that the domain name <croatiaairlines.com> is identical to the Complainant's CROATIA AIRLINES mark).

Respondent has failed to come forward to demonstrate any rights or legitimate interests in the <morgantownmall.com> domain name. See Talk City, Inc. v. Robertson, D2000-0009, (WIPO Feb. 29, 2000) (stating that "[i]n the absence of a response, it is appropriate to accept as true all allegations of the Complaint"); see also Woolworths plc. v. Anderson, D2000-1113 (WIPO Oct. 10, 2000) (finding that absent any evidence of preparation to use the domain name for any legitimate purpose, the burden of proof lies with the Respondent to demonstrate that he has rights or legitimate interests).

There is a presumption that Respondent has no rights or legitimate interests with respect to the domain name in dispute where Respondent fails to submit a response. See Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that "Respondents’ failure to respond can be construed as an admission that they have no legitimate interest in the Domain Names").

There is no evidence in the record, and Respondent has not come forward to establish that it is commonly known by the <morgantownmall.com> domain name, pursuant to Policy ¶ 4(c)(ii). See Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding no rights or legitimate interests where (1) Respondent is not a licensee of Complainant; (2) Complainant’s prior rights in the domain name precede Respondent’s registration; (3) Respondent is not commonly known by the domain name in question).

Furthermore, there is no evidence that demonstrates Respondent is making a legitimate noncommercial or fair use of the <morgantownmall.com> domain name pursuant to Policy ¶ 4(c)(iii). See Broadcom Corp. v. Intellifone Corp., FA 96356 (Nat. Arb. Forum Feb. 5, 2001) (finding no rights or legitimate interests because Respondent is not commonly known by the disputed domain name or using the domain name in connection with a legitimate or fair use).

The Panel therefore concludes that Respondent does not have any rights or legitimate interests in the <morgantownmall.com> domain name, and that Policy ¶ 4(a)(ii) has been satisfied.

Bad faith is evidenced by the obvious connection the <morgantownmall.com> domain name has with the Complainant’s enterprise, as it incorporates Complainant’s MORGANTOWN MALL mark in its entirety. Based on the totality of the circumstances, the facts of this case support a finding of bad faith. See Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that the "domain names are so obviously connected with the Complainants that the use or registration by anyone other than Complainants suggests ‘opportunistic bad faith’"); see also Kraft Foods (Norway) v. Wide, D2000-0911 (WIPO Sept. 23, 2000) (finding that the fact "that the Respondent chose to register a well known mark to which he has no connections or rights indicates that he was in bad faith when registering the domain name at issue").

The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.

Having established all three of the elements under the ICANN Policy, the Panel concludes that the requested relief should be hereby granted.

Accordingly, it is Ordered that the <morgantownmall.com> domain name be transferred from Respondent to Complainant.