Hewlett-Packard Company v. Greg Martineau
Claim Number: FA0008000095359
The Complainant is Hewlett-Packard Company, Palo Alto, CA, USA ("Complainant"). The Respondent is Greg Martineau, Alberta, Canada ("Respondent").
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is "PHOTOSMART.ORG", registered with Network Solutions Inc. ("NSI").
The Panelist certifies that he or she has acted independently and impartially and to the best of his or her knowledge, has no known conflict in serving as the panelist in this proceeding.
Hon. James A. Carmody, as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum ("The Forum") electronically on August 3, 2000; The Forum received a hard copy of the Complaint on August 3, 2000.
On August 3, 2000, NSI confirmed by e-mail to The Forum that the domain name "PHOTOSMART.ORG" is registered with NSI and that the Respondent is the current registrant of the name. NSI has verified that Respondent is bound by the Network Solutions Service Agreement Version 5.0 and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANNís UDRP.
On August 4, 2000, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of August 24, 2000 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via e-mail, post and fax, and to all entities and persons listed on Respondentís registration as technical, administrative and billing contacts by e-mail. It was also e-mailed to firstname.lastname@example.org.
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 August 28, 2000, pursuant to Complainantís request to have the dispute decided by a Single Member panel, The Forum appointed the Hon. 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 Uniform 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 Forumís Supplemental Rules and any rules and principles of law that the panel deems applicable, without the benefit of any Response from the Respondent.
The Complainant requests that the domain name be transferred from the Respondent to the Complainant.
The Complainant contends that the domain name in question is confusingly similar to the PHOTOSMART trademark. The Complainant contends that the Respondent can have to rights or legitimate interests in a domain name, which primarily consists of the Complainantís registered mark. The Complainant asserts that the Respondent registered the domain name in bad faith and that his unauthorized and continued use of the domain name constitutes use in bad faith.
The Respondent has not contested the allegations in the Complaint.
The Complainant is the owner of the trademark registration for the mark PHOTOSMART (U.S. registration Number 2,362,503, filed on July 23, 1996) registered in connection with computer peripherals, namely printers, scanners, digital cameras, and operating software. The Complainant has also registered the mark PHOTOSMART in Argentina, Brazil, Canada, the European Community, Hong Kong, Japan, South Korea, Mexico, New Zealand, Norway, Singapore, Switzerland, and the United Kingdom.
On May 8, 2000, the Respondent registered the domain name "PHOTOSMART.ORG". The Respondent has made no use of the domain name or the corresponding website.
Based on ICANN Uniform Rule 14(b), in absence of the Respondentís response, the Panel shall draw inferences, as it deems appropriate. The Panel accepts all reasonable inferences of fact in the Complainant as true.
Paragraph 4(a) of the ICANN Uniform Domain Name Dispute Policy ("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 name in question consists of the Complainantís registered mark and the common URL suffix, ".org". The Panel concludes that the domain name in question is identical to the Complainantís registered mark. See Hormel Foods Corp. and Hormel Foods, LLC v. Spotted Cow Media, FA 95067 (Nat. Arb. Forum July 31, 2000) (finding that the domain name <kidskitchen.com> is identical to the Complainantís trademark KIDSKITCHEN).
Rights or Legitimate Interests
The Respondent has submitted no statement claiming rights in or a legitimate interest to the domain name in question.
The Respondent is not commonly known by the domain name in question, which is comprised of the Complainantís registered mark. Policy 4.c.(ii). The Respondent has not used the domain name in connection with a bona fide offering of goods and services. Policy 4.c.(i). The Respondent has no affiliation or relationship with the Complainant and has no legitimate reason for using the registered trademark as its domain name. The Respondent has not used the domain name in connection with a noncommercial or fair circumstance. Policy 4.c.(iii).
The Panel concludes that the Respondent has no rights or legitimate interests in the domain name in question.
Registration and Use in Bad Faith
The Complainant asserts that the Respondent registered and used the domain name in bad faith.
The Respondent has made no use of the domain name in question. Passive holding of a domain name is evidence of registration and use in bad faith. See Telstra Corp. v. Nuclear Marshmallows, D2000-0003 (WIPO Feb. 18, 2000) ("[I]t is possible, in certain circumstances, for inactivity by the Respondent to amount to the domain name being used in bad faith"). Registration of the Complainantís unique and widely advertised trademarked name by someone with no affiliation with the Complainant leads the Panel to believe that the Respondent is acting in bad faith. The Respondentís failure to submit an assertion of good faith intent to use the domain name, in addition to the passive holding of the domain name, reveal that the Respondent registered and uses the domain name in bad faith.
While the Respondentís conduct does not fit within the examples listed in Policy 4.b., the Policy indicates that the listed circumstances of bad faith are non-exclusive. Policy 4.b. See The Channel Tunnel Group Ltd. v. Powell, D2000-0038 (WIPO Mar. 17, 2000) ([J]ust because Respondentís conduct does not fall within the ëparticularí circumstances set out in 4.b. of the Policy, is not conclusive that the Euro-tunnel.com domain name in issue was registered and is being used in bad faith"). Based on the above, the Panel determines that the burden in Policy 4.a.(iii) is satisfied.
Having established all three elements required by the ICANN Policy Rule 4(a), it is the decision of the panel that the requested relief be granted.
Accordingly, for all of the foregoing reasons, it is ordered that the domain name, "PHOTOSMART.ORG" be transferred from the Respondent to the Complainant.
Hon. James A. Carmody, Arbitrator
Dated: August 30, 2000
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