Internet Billing Company Ltd. v Fundu Technologies
Claim Number: FA0008000095547
The Complainant is Internet Billing Company, Ltd. , Ft. Lauderdale, FL, USA ("Complainant"). The Respondent is Fundu Technologies, Dallas, TX, USA ("Respondent").
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is "ibills.com" registered with Network Solutions.
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 31, 2000; The Forum received a hard copy of the Complaint on September 5, 2000.
On September 6, 2000, Network Solutions confirmed by e-mail to the Forum that the domain name "ibills.com" is registered with Network Solutions and that the Respondent is the current registrant of the name. Network Solutions has verified that Respondent is bound by the Network Solutions 5.0 registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s UDRP.
On September 6, 2000, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 26, 2000 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 email@example.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 September 29, 2000, pursuant to Complainant’s request to have the dispute decided by a One 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 Forum’s 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.
Respondent submitted no response in this matter.
Complainant, Internet Billing Company, Ltd., was formed in 1995. Complainant has been doing business as IBILL since that time. Complainant owns a federally registered service mark "ibill.com" and a federally registered design mark prominently featuring the IBILL logo. Complainant received its federal trademark registration of the "ibill.com" mark on March 17, 1998. That same day, Respondent registered the domain name "ibills.com". Since registration, Respondent has not developed any Internet presence corresponding to the "ibills.com" domain name.
Complainant’s evidence indicates that on two or more occasions, Respondent offered to sell the "ibills.com" domain name to Complainant.
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 "ibills.com" domain name is confusingly similar to Complainant’s registered marks "ibill.com" and IBILL. There is clear precedent, both under trademark law and the UDRP, that the addition of a generic letter or symbol does not lessen confusing similarity. See Minnesota Mining & Mfg. Co. v. Taylor 21 F. Supp. 2d 1003, 1005 (D. Minn. 1998) (finding "post-it.com" to be the same as "Post-It"); Toyota Jidosha Kabushiki Kaisha v. S&S Enterprises Ltd. D2000-0802 (WIPO September 9, 2000) (finding that the domain names "itoyota.com" and "itoyotas.com" are virtually identical to Complainant’s TOYOTA mark).
Rights or Legitimate Interests
Respondent has been passively holding the "ibills.com" domain name for twenty-eight months. After two years of nonuse, it is inferred that a Respondent does not have a bona fide intent to use the domain name. See Mondich and Amer. Vintage Wine Biscuits, Inc. v. Brown, D2000-0004 (WIPO Feb. 16, 2000) (failure to develop a site in two years raises the inference of lack of bona fide intent to use the name).
Respondent has the burden of proving that it has rights or a legitimate interest in domain name. Here, Respondent has failed to provide even a scintilla of evidence to rebut Complainant’s assertion that Respondent had no legitimate interest in the domain name. This failure permits a reasonable inference therefrom that Respondent does not have rights or any legitimate interest in the domain name. See ICANN Policy ¶ 4(c) and ICANN Rule 14(b).
Registration and Use in Bad Faith
Respondent’s conduct indicates that the domain name was registered and is being used in bad faith. Under Section 22 of the United States Trademark Act, "Registration of a mark on the principal register…shall be constructive notice of the registrant’s claim of ownership." The fact that Respondent registered the domain name "ibills.com" on the very day that "ibill.com" was granted federal registration status is evidence of both constructive notice and registration in bad faith. See Deutsche Bank AG v. Diego-Arturo Bruckner, D2000-0277 (WIPO May 30, 2000) ("[T]he domain name is so obviously connected with the Complainant and its services that its very use by someone with no connection with the Complainant suggests opportunistic bad faith)
Complainant’s evidence also indicates that twenty-eight months have passed since Respondent registered the domain name "ibills.com" and Respondent has never made use of the domain name. Here, this "passive holding" also evidences bad faith. See Hewlett-Packard Company v. Greg Martineau, FA 95359 (Nat. Arb. Forum Aug. 30, 2000) (finding that the Respondent’s 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).
Having established all three elements required by the ICANN Policy ¶ 4(a), it is the decision of the Panel that the requested relief be granted.
Accordingly, it is ordered that the domain name "ibills.com" be transferred from the Respondent to the Complainant.
Hon. James A. Carmody, Panelist
Dated: October 2, 2000
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