DECISION

 

Kimball Hill, Inc. v None a/k/a Barrett Blackard

Claim Number: FA0106000097370

 

PARTIES

Complainant is Kimball HIll, Inc., Rolling Meadows, IL, USA (“Complainant”).  Respondent is None a/k/a Barrett Blackard, Fort Worth, TX, USA (“Respondent”).

 

REGISTRAR AND DISPUTED DOMAIN NAMES

The domain names at issue are "kimbalhill.com" and "kimbalhillhomes.com", registered with directNIC.com.

 

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.

 

R. Glen Ayers served as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (“the Forum”) electronically on June 5, 2001; the Forum received a hard copy of the Complaint on June 6, 2001.

 

On June 6, 2001, directNIC.com confirmed by e-mail to the Forum that the domain names "kimbalhill.com" and "kimbalhillhomes.com" are registered with directNIC.com and that the Respondent is the current registrant of the name.  DirectNIC.com has verified that Respondent is bound by the directNIC.com 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 25, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of July 16, 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@kimbalhill.com and postmaster@kimbalhillhomes.com by e-mail.

 

A timely response was received and determined to be complete on July 10, 2001.

 

On July 17, 2001, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed R. Glen Ayers as Panelist.

 

RELIEF SOUGHT

Complainant requests that the domain names be transferred from Respondent to Complainant.

 

PARTIES’ CONTENTIONS

A. Complainant

Complainant alleges that:  “Kimball Hill, Inc. is an Illinois corporation that was established in 1939.”

 

The Complainant then asserts that Respondent, Barrett Blackard, of Ft. Worth, Texas, has registered domain names designed to confuse potential customers and that there are no corporate entities chartered in Texas or Illinois or Texas.

 

“Bad Faith” is not directly alleged; rather, Respondent is described as a dissatisfied purchaser who has asked Complainant “for money because of these problems.”

 

B. Respondent

Respondent points out that the Complainant fails to allege:

 

(1)               that it owns or holds any trade or service mark at all;

 

(2)               that Respondent has no rights in Complainant’s mark; and

 

(3)               that there is any element of “bad” faith as that term is used at ICANN Policy 4(a)(ii).

 

Respondent does admit that he is a very dissatisfied customer who has sought compensation for breach of contract by Complainant, including incidental and consequential damages.  Respondent asserts that he has never sought money for the domain names.

 

C. Additional Submissions

There were no additional submissions.

 

FINDINGS

The Panel finds that Complainant has failed to state any claim under the ICANN Policies and Rules.

 

Complainant has asserted no trade or service marks, registered or existing at common law.  See Powrachute, Inc v. Buckeye Indus., AF 0076 (e-Resolution May 30, 2000).

 

Therefore, under the ICANN Rules and Policy, Complainant has wholly failed to assert a claim for cancellation or transfer.

 

As an aside, Complainant’s conduct before this forum is very similar to its conduct with its customer, Respondent.  Of course, Respondent has gone to somewhat great lengths in a rather childish game of one-upmanship.

 

Whether Respondent has rights in the name under Policy 4(a)(ii), or whether Respondent is acting in bad faith Policy 4(a)(iii), are, therefore, irrelevant.

 

DISCUSSION

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 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

Because Complainant has not alleged that it holds either a registered or common law trade or service mark, the Complainant has failed to allege one of the three necessary elements, and no relief can be granted.

 

Rights or Legitimate Interests

Because Complainant holds no mark, this issue need not be reached.

 

Registration and Use in Bad Faith

Because Complainant alleged no mark, this issue is irrelevant, through I do not think Respondent has acted in “bad faith” as that term is used in the ICANN Policy and Rules.

 

DECISION

The domain name shall not be transferred.

 

 

R. Glen Ayers, Panelist

 

Dated:  July 23, 2001