Complainant is IN-N-OUT BURGERS, Irvine, CA ("Complainant") represented by Daniel M. Cislo, of Cislo & Thomas. Respondent is Dwayne Harlow, Blythe, CA ("Respondent").

The domain name at issue is <in-n-out-burger.net>, registered with Register.com.

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.

James A. Carmody, as Panelist.

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on August 21, 2001; the Forum received a hard copy of the Complaint on August 22, 2001.

On August 28, 2001, Register.com confirmed by e-mail to the Forum that the domain name <in-n-out-burger.net> is registered with Register.com and that Respondent is the current registrant of the name. Register.com has verified that Respondent is bound by the Register.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 August 28, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 17, 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@in-n-out-burger.net 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 October 2, 2001, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed James A. Carmody 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 name be transferred from the Respondent to the Complainant.

A. Complainant

B. Respondent

No response was submitted by the Respondent.

Complainant, a California corporation owns twenty-three (23) Trademarks and Service Marks on which this Complaint is based. Complainant has since October 21, 1975 registered 26 Trademarks/Service Marks for the words and/or designs using "In-N-Out" or "In-N-Out Burger(s)" or variations thereof, including three registrations using a Spanish "In-N-Out." There are presently 23 "Live" registrations. The In-N-Out mark was first used in commerce as early as 1949 and has since as early as March 1963, been continuously used for food and restaurant related services. In-N-Out Trademarks and Service Marks have registration dates beginning January 20, 1976 through November 9, 1999.

Respondent Dwayne Harlow is not now and has never been authorized by In-N-Out, and is not now and has never been entitled to use the IN-N-OUT mark in connection with any business or service.

Complainant has sent correspondence in the form of letters and e-mail to Respondent, demanding that <in-n-out-burger.net> be relinquished to Complainant but Respondent has failed to respond in any way.

There is no evidence that Respondent has conducted any legitimate business activity with respect to the subject domain name.

Respondent registered the domain name on May 23, 2000.

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.

In-N-Out has since as early as March, 1963, been continuously using the mark IN-N-OUT for food and restaurant related services and has expended substantial resources in the promotion of the IN-N-OUT mark. The mark has since 1963 become famous throughout the United States. Based on this continued and extensive use of the mark and Complainant’s Trademark/Service mark registrations, the Panel concludes that the Complainant has rights in the IN-N-OUT mark.

Except for the generic top level domain name (gTLD) ".net," <in-n-out-burger.net"> is exactly the same as Complainant’s Trademark/Service mark. The ".net" does not serve to identify a specific service provider as a source of goods or services and is without legal significance to distinguish it from Complainant’s Trademarks/Service marks. Respondent’s <in-n-out-burger.net> is identical to Complainant’s" Trademarks/Service marks. E.g., Football Ass’n. Ltd. v. UKIP, D2000-1359 (WIPO Dec. 15, 2000) (<facup.com> held identical to "FA Cup" trademark).

Based on the above, the Panel determines that the elements set forth in Policy ¶ 4(a)(i) have been established.

Respondent has not submitted any response indicating a legitimate right or interest in the domain name. Respondent has not and cannot demonstrate use or preparations to use the subject domain name in connection with a bona bide offering of goods or services. Policy ¶ 4(c)(i). Nor is there any evidence—nor could there be any evidence—that Respondent has been commonly known by the subject domain name. Policy ¶ 4(c)(ii). Finally, the foregoing demonstrates that Respondent is not making any legitimate noncommercial or fair use of the subject domain name without intent for commercial gain to misleadingly divert consumers. Policy ¶ 4(c)(iii).

The Respondent has made no use of the domain name at issue. Failure to use the domain name is evidence that the Respondent has no rights or legitimate interests in the domain name. See Ziegenfelder Co. v. VMH Enterprises, Inc., D2000-0039 (WIPO Mar. 14, 2000) (failure to provide a product or service or develop the site demonstrates no established rights or legitimate interests in the domain name).

The Panel concludes that the elements set forth in Policy ¶ 4(a)(ii) have been established.

Given Complainant’s numerous trademark/service mark registrations, it is not possible to conceive of a plausible circumstance in which Respondent could legitimately use the domain name or that Respondent would not have been aware of the Complainant’s marks. Respondent has no independent trademark rights or applications filed with respect to the IN-N-OUT-BURGER mark. He is not known by the marks’ name and is not making any legitimate noncommercial use of the Domain Name. The only valid conclusion to Respondent’s conduct is that he has chosen and registered the domain name in bad faith with the intention to capitalize on the public recognition of the Complainant’s trademarks and service marks. See Samsonite Corp. v. Colony Holding, FA 94313 (Nat. Arb. Forum Apr. 17, 2000) (evidence of bad faith includes actual or constructive knowledge of commonly known mark at the time of registration).

Respondent has not taken any positive action since registration. The domain name does not resolve to an active web site. Nor is there evidence that a web site or other on-line presence is in the process of being established such as advertising, promotion or display to the public of the domain name or that Respondent has offered to sell, rent or otherwise transfer the domain name. See Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (recognizing that merely holding an infringing domain name without active use can constitute use in bad faith and that when applied to the failure to respond to communications "it is not possible to conceive of a plausible way in which the Respondent could legitimately use the domain name" is conclusive of continuing use in bad faith).

The Panel concludes that the elements set forth in Policy ¶ 4(a)(iii) have been established.

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

Accordingly, it is Ordered that the domain name <in-n-out-burger.net> be transferred from Respondent to Complainant.