G1440 Holdings, Inc. v. InterGo.com Inc.
Claim Number: FA0609000796231
Complainant is G1440 Holdings Inc. (“Complainant”), represented by Allison C. Staley, 10706 Beaver Dam Road, Cockeysville, MD 21030. Respondent is InterGo.com Inc. (“Respondent”), 3411 Silverside Road, 103 Springer Bldg., Wilmington, DE 19810.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <1440.com>, registered with Tucows 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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On September 19, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of April 28, 1998 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@1440.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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 National Arbitration Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
There is no evidence that Respondent received actual notice of the dispute. The National Arbitration Forum’s transmission to Respondent’s post address was returned as undeliverable, the transmission via fax did not go through to the listed fax number, and the transmission to postmaster@1440.com by e-mail was returned to the National Arbitration Forum as undeliverable. In light of the Panel’s uncertainty as to whether Respondent received actual notice of the dispute, the Panel finds that there is no evidence that Respondent chose to intentionally default in this dispute, but rather was unaware of the pending dispute and therefore unable to respond to the dispute.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <1440.com> domain name is identical to Complainant’s 1440 mark.
2. Respondent does not have any rights or legitimate interests in the <1440.com> domain name.
3. Respondent registered and used the <1440.com> domain name in bad faith.
B. As explained above, although Respondent failed to submit a Response in this proceeding, there is no evidence that the Respondent received actual notice of the Complaint.
Complainant, G1440 Holdings, Inc.,
provides a variety of services, including software development, design and IT
consulting. Complainant holds a
trademark registration with the United States Patent and Trademark Office
(“USPTO”) for the 1440 mark (Reg. No. 2,756,680 issued
Respondent registered the <1440.com>
domain name on
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."
Paragraph 4(a) of the Policy requires that 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 Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) 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.
Although the Complainant’s registration with the USPTO
establishes Complainant’s rights in the 1440 mark, Innomed
Techs., Inc. v. DRP Servs., FA 221171
(Nat. Arb. Forum
Respondent registered the domain name in dispute in April
1988, five years before the date of Complainant’s trademark registration in 2003
(and two years before Complainant’s first use of the mark). Thus, Complainant has failed to assert rights
in the domain name that predate Respondent’s registration of the disputed
domain name. Other cases have dealt with similar
situations where a respondent or an unknown third party registered a disputed
domain name prior to a complainant’s establishing rights in a mark. In Razorbox, Inc. v. Skjodt, FA 150795 (Nat. Arb. Forum May 9, 2003), the panel noted that as
the respondent’s registration of the <razorbox.com> domain name predated
the complainant’s alleged rights the complainant did not have standing to bring
a claim under the UDRP.
The Panel thus finds
that because the domain name registration predates Complainant’s use and
registration of the mark in question, and because Complainant has not come
forward with proof to controvert Respondent’s rights based on this earlier date
in time, Complainant has not shown standing to bring the Complaint. Phoenix Mortgage Corp. v. Toggas,
D2001-0101 (WIPO
Having ruled in this manner on the first part of Complainant’s burden, the Panel does not reach the remaining two prongs of the burden.
Having concluded that Complainant lacks standing to bring this Complaint, the Panel concludes that relief shall be DENIED without prejudice.
Accordingly, it is Ordered that the <1440.com> domain name remain with Respondent.
Bruce E. Meyerson, Panelist
Dated: November 13, 2006
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