Digital Agent,
Inc. v. DTA Digital Talent Agent
Claim Number: FA0106000097722
PARTIES
The Complainant is Digital Agent, Inc., Atlanta, GA, USA (“Complainant”). The Respondent is DTA Digital Talent Agent, San Francisco, CA, USA (“Respondent”).
REGISTRAR AND
DISPUTED DOMAIN NAME
The domain name at issue is <digitalagent.com>, registered with Network Solutions, Inc.
PANEL
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge, has no known conflict in serving as Panelist in this proceeding.
Sandra Franklin as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum (“the Forum”) electronically on June 21, 2001; the Forum received a hard copy of the Complaint on June 21, 2001.
On June 22, 2001, Network Solutions, Inc. confirmed by e-mail to the Forum that the domain name <digitalagent.com> is registered with Network Solutions, Inc. and that the Respondent is the current registrant of the name. 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 July 2, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of July 23, 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@digitalagent.com by e-mail.
A timely response was received and determined to be complete on July 19, 2001.
On
July 25, 2001, pursuant to Complainant’s request to have the dispute decided by
a single-member Panel, the Forum
appointed Sandra Franklin as Panelist.
RELIEF SOUGHT
The Complainant requests that the domain name be transferred from Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant contends that Respondent adopted the domain name DigitalAgent.com solely for the purpose of redirecting traffic from Complainant to Respondent and for the purpose of extracting “profit from” Complainant. Complainant cites Respondent’s “apparent insolvency and/or their unwillingness to negotiate” and Respondent’s dormant web site to support the contention that Respondent has no legitimate rights and has acted in bad faith.
B. Respondent contends that it has been in business longer than Complainant and had been legitimately using the web site under the domain name DigitalAgent.com. Respondent intends to revive the domain name in the future.
FINDINGS
The three elements required for transfer of the domain name have not been met by Complainant.
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
The domain names are identical but for the difference in the top level domains .com and .net. Neither party has a registered trademark or service mark.
Rights or
Legitimate Interests
The Respondent has legitimate rights and interests in the domain name. It states that it has been in operation for many years, and filed for its domain name prior to Complainant commencing operations. Respondent’s company name is Digital Talent Agent, which is close to the domain name DigitalAgent. Respondent has had a web site under that domain name, which it shut down temporarily for business reasons, and it intends to use the domain name again.
Complainant offered no evidence of Respondent’s insolvency and Respondent has no duty whatsoever to negotiate for the sale of the domain name.
Registration and
Use in Bad Faith
Complainant has offered no evidence of bad faith, and nothing to support its allegations that Respondent redirected web traffic from Complainant’s site to its own site. Complainant cannot sustain the allegation that Respondent sought profit from Complainant since Respondent did not contact Complainant, and did not even respond to Complainant’s overtures.
DECISION
The domain name DigitalAgent.com shall not be transferred to Complainant.
Sandra Franklin, Panelist
Dated: August 6, 2001
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