Complainant is Comdata Network, Inc., Brentwood, TN, USA ("Complainant") represented by Carla C. Calcagno, of Howrey Simon Arnold & White. Respondent is Hugh Lewis, Brentwood, TN, USA ("Respondent").

The domain names at issue are <iconnectdata.com> and <iconnectcard.com> registered with Network Solutions, Inc.

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.

John J. Upchurch as Panelist.

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on June 6, 2001; the Forum received a hard copy of the Complaint on June 7, 2001.

On June 12, 2001, Network Solutions, Inc. confirmed by e-mail to the Forum that the domain names <iconnectdata.com> and <iconnectcard.com> are registered with Network Solutions, Inc. and that Respondent is the current registrant of the names. Network Solutions, Inc. has verified that Respondent is bound by the Network Solutions, Inc. 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 13, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of July 3, 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@iconnectdata.com and postmaster@iconnectcard.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.

On July 16, 2001, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed John J. Upchurch 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 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 names be transferred from Respondent to Complainant.

A. Complainant

The <iconnectdata.com> and <iconnectcard.com> domain names are identical to the marks of Complainant.

The Respondent does not have any rights or legitimate interests with respect to the <iconnectdata.com> and <iconnectcard.com> domain names.

The <iconnectdata.com> and <iconnectcard.com> domain names were registered and used in bad faith by Respondent.

B. Respondent

No response was received.

Since 1969, Complainant has offered transaction processing, fuel management, regulatory compliance, financial, and information services to the trucking industry. Complainant uses the ICONNECTDATA mark in connection with computer, online, and software services. Complainant has filed an intent to use application with the United States Patent and Trademark Office for its ICONNECTCARD mark.

Respondent, while an employee of Complainant, registered the disputed domain names on March 27, 2000, per Complainant’s instruction. Complainant later reimbursed Respondent for the registration of the disputed domain names. Though Respondent was directed to register the <iconnectdata.com> and <iconnectcard.com> domain names in Complainant’s name, Respondent registered the disputed domain names under his name, and listed Complainant as the administrative and billing contact.

Respondent is no longer employed by Complainant, and has refused to respond to Complainant’s requests to transfer the <iconnectdata.com> and <iconnectcard.com> domain names to Complainant.

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 ICONNECTDATA mark is it has used this mark extensively in connection with its business. Furthermore, Complainant has established it has rights in the ICONNECTCARD mark, as it has filed an intent to use application with the United States Patent and Trademark Office. 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"). The ICANN dispute resolution policy is "broad in scope" in that "the reference to a trademark or service mark ‘in which the complainant has rights’ means that ownership of a registered mark is not required–unregistered or common law trademark or service mark rights will suffice" to support a domain name complaint under the policy. McCarthy on Trademarks and Unfair Competition, § 25:74.2, Vol. 4 (2000).

The disputed domain names are identical to marks in which Complainant has rights. See Snow Fun, Inc. v. O'Connor, FA 96578 (Nat. Arb. Forum Mar. 8, 2001) (finding that the domain name <termquote.com> is identical to Complainant’s TERMQUOTE mark); see also Amherst v. IFC Corp., FA 96768 (Nat. Arb. Forum Apr. 3, 2001) (finding that Respondent’s domain name <customcommerce.com> is identical to Complainant’s CUSTOM COMMERCE trademark registration).

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

Furthermore, there is a presumption that Respondent has no rights or legitimate interests with respect to a disputed domain names 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).

Respondent’s lack of rights and legitimate interests are demonstrated by the fact that Respondent, as a former employee, was certainly aware of the existence of Complainant’s rights in the ICONNECTDATA and ICONNECTCARD marks, however Respondent continued to register the disputed domain names under his name, rather than Complainant’s. See Savino Del Bene Inc. v. Gennari, D2000-1133 (WIPO Dec. 12, 2001) (finding that a former employee does not acquire rights or legitimate interests in a domain name identical to the former employer's trademark); see also Vestel Elektronik Sanayi ve Ticaret AS v. Mehmet Kahveci, D2000-1244 (WIPO Nov. 11, 2000) (finding that "…merely registering the domain name is not sufficient to establish rights or legitimate interests for purposes of paragraph 4(a)(ii) of the Policy").

The Panel finds that Respondent has no rights or legitimate interests in the disputed domain names, and that Policy ¶ 4(a)(ii) has been satisfied.

Because Respondent was a former employee of Complainant, and was charged with the task of registering the disputed domain names in the Complainant’s names, it is held that Respondent was aware of Complainant’s rights to the ICONNECTDATA and ICONNECTCARD marks before registering the disputed domain names. Previous Panel’s have held that the awareness of a Complainant’s mark at the time of registration of a disputed domain name that is confusingly similar to that mark is evidence of bad faith. See The Channel Tunnel Group Ltd. v. Powell, D2000-0038 (WIPO Mar. 17, 2000) (finding bad faith registration where Respondent was held to have known of the existence of Complainant’s rights in a mark, and registered a confusingly similar domain name); see also Savino Del Bene Inc. v. Gennari, D2000-1133 (WIPO Dec. 12, 2000) (finding "Respondent's registration of the company name of his former employer as a domain name is an act of bad faith").

Though Complainant has retained administrative control over the disputed domain names, Respondent has still engaged in bad faith use of the disputed domain names based on the totality of the circumstances. Policy ¶ 4(b) sets forth four non-exclusive factors that a Panel may use to make a finding of registration and use of a disputed domain name in bad faith. The fact that Respondent, a former employee of Complainant, was charged with the task of registering the disputed domain names in Complainant’s name, was reimbursed for the domain name registration fees by Complainant, and has failed to respond to Complainant’s efforts to reach Respondent all establish circumstances which permit the Panel to find that the disputed domain names have been registered and used in bad faith. See Twentieth Century Fox Film Corp. v. Risser, FA 93761 (Nat. Arb. Forum May 18, 2000) (finding that in determining if a domain name has been registered in bad faith, the Panel must look at the "totality of circumstances"); see also 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’").

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 <iconnectdata.com> and <iconnectcard.com> domain names be transferred from Respondent to Complainant.