[Indexed as: Accu-Find v. Accufind]
[Indexed as: accufind.com et al.]
National Arbitration Forum
Domain Name Dispute Administrative Decision
File Number: FA0005000094831
Commenced: 18 May 2000
Judgement: 19 June 2000
Arbitrator: Albert T. Cave
Domain name – Domain name dispute resolution – Third party service mark – No license – Not identical or confusingly similar – Not competing parties – Goods and services offered – No bad faith registration.
Complainant registered domain names Accu-Find.com and Accu-Find.net. Respondent registered the domain names in question, Accufind.com and Accufind.net. Trademark or service mark for Accufind is held by third party. Neither Complainant nor Respondent licensed use of trademark or service mark.
Held, Name Not Transferred
Complainant has service mark pending for AF ACCU FIND INTERNET SERVICES.
Domain names in question are neither identical nor confusingly similar
to service mark pending. Even though domain names used by Complainant and
Respondent are almost identical, a third party holds the service mark for
Accufind.
Respondent has legitimate rights or interests in the domain names
in question. Respondent had been using the domain names to offer goods
and services for sale before any notice of a dispute. Furthermore,
Respondent is not a competitor of Complainant.
Finally, Complainant’s claims osf bad faith registration are unsubstantiated.
There is no proof that Respondent registered the domains to disrupt or
cause confusion with Complainant’s business.
Policies referred to
Uniform Domain Name Dispute Resolution Policy, adopted August 26, 1999
Panel Decision referred to
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Cave, Panelist: -
The above entitled matter came on for administrative hearing on June 19, 2000 before the undersigned on the Complaint of Accu-Find Internet Services hereafter "Complainant", against AccuFind, hereafter "Respondent". Complainant was represented by Richard Ware Levitt. Respondent was represented by Thomas M. Staniszewski. Upon the written submitted record the following DECISION is made:
PROCEDURAL FINDINGS
Domain Names: AccuFind.com, AccuFind.net
Domain Name Registrar: Network Solutions, Inc.
Domain Name Registrant: AccuFind
Date of Domain Name Registration: October 17, 1998 (AccuFind.com),
October
23, 1998 (AccuFind.net)
Date Complaint Filed: May 16, 2000
Date of Commencement of Administrative Proceeding in Accordance with
Rule
2(a) and Rule 4(c ): May 18, 2000
Due Date for Response:June 7, 2000
Respondent's Response was filed.
.
After reviewing the Complaint and determining
it to be in administrative compliance the National Arbitration Forum (The
Forum) forwarded the Complaint to the Respondent in compliance with Rule
2(a) and the administrative proceeding was commenced pursuant to Rule 4
(c ). In compliance with Rule 4(d), The Forum immediately notified
Network Solutions,
Inc., the Internet Corporation for Assigned Names and Numbers (ICANN)
and the Respondent that the administrative proceeding had commenced.
Respondent submitted a response to The Forum within twenty days pursuant
to Rule 5(a).
Respondent registered the domain name AccuFind.com
on October 17, 1998 and AccuFind.net on October 23, 1998 with Network Solutions,
Inc., an entity that is a registrar of domain names. On May 22, 2000
Network Solutions, Inc. verified that the Respondent is the Registrant
for the domain names at issue and that further by registering the domain
name with Network Solutions, Inc., Respondent agreed to resolve any dispute
regarding its domain name through ICANN's Rules for Uniform Domain Name
Dispute Resolution Policy , and the Uniform Domain Name Dispute Resolution
Policy.
FINDINGS OF FACT
1. Complainant registered the domain
name Accu-Find.com with Network Solutions, Inc. on October 2, 1996 and
has used the name since that date.
2. Complainant registered the domain name Accu-Find.net on April
11, 1999.
3. The Respondent registered the domain name AccuFind.com with
Network Solutions, Inc. on October 17, 1998 and has been a user of that
name since that date.
4. The Respondent registered the name AccuFind.net on October
23, 1998.
5. The domain names are identical except for the absence of the
hyphen in Respondent's domain names.
6. Neither party is the owner of the trademark or service
mark for ACCUFIND. This mark is owned by SEEC, Inc., a corporation
which is not a party to this case. The mark has not been licensed,
sold or assigned by SEEC, Inc. to either the Complainant or the Respondent.
7. On April 13, 1999 the Complainant applied to register
AF ACCU FIND INTERNET SERVICES as a service mark. This application
is still pending.
8. The service mark AF ACCU FIND INTERNET SERVICES is not identical
or confusingly similar to the domain names at issue.
9. The Complainant, Accu-Find Internet Services is engaged in
the business of designing and hosting web sites for others.
10. The Respondent provides an internet search engine supported
by banner advertising, which is not in competition with any business of
the Complainant.
11. The Respondent has been using the domain names in connection
with a bona fide offering of goods or services and began to do so before
any notice that Respondent's use of the names was in dispute.
12. Allegations of bad faith on the part of the Respondent in
registering the domain names for the purpose of disrupting the business
of the Complainant, or intentionally attempting to attract users to his
site because of the confusion resulting from the similarity of names, lack
substantiation.
CONCLUSIONS
The undersigned certifies that he has acted independently
and has no known conflict of interrest to serve as Arbitrator in this proceeding.
Having been duly selected, and being impartial, the undersigned makes the
following findings and conclusions:
1. The jurisdiction of the Arbitrator is strictly limited to
a dispute under Paragraph 4 of the Uniform Domain Name Resolution Policy
to which the parties have contractually agreed to submit themselves and
not to broader issues that could be raised in law or equity.
2. While the domain names used by the parties are almost identical,
the trademark or service mark to the name ACCUFIND is held by a third party.
3. The pending application filed by the Complainant on April
13, 1999 to register the service mark AF ACCU FIND INTERNET SERVICES does
not give the Complainant any preemptive rights as it is not identical or
confusingly similar to the domain names under Paragraph 4a(I) of the Uniform
Domain Name Dispute Resolution Policy of ICANN.
4. Before any notice that the use of the domain names were in
dispute, the Respondent used the domain names in connection with a bona
fide offering of goods or services and therefore had rights or a legitimate
interest in the domain names under Paragraph 4a(ii) of the Uniform Domain
Name Dispute Resolution Policy.
5. Allegations by the Complainant that the Respondent acted in
bad faith in registering the name to divert customers or disrupt Complainant's
business are not substantiated to meet the requirements of Paragraph
4a(iii) of the Uniform Domain Name Dispute Resolution Policy.
DECISION
Based upon the above findings and conclusions,
and pursuant to Paragraph Rule 4(I) of ICANN's Uniform Domain Name
Dispute Resolution Policy, it is decided as follows:
THE UNDERSIGNED DIRECTS THAT THE DOMAIN NAMES
“ACCUFIND.COM" AND "ACCUFIND.NET" REGISTERED BY THE RESPONDENT ACCUFIND
NOT BE TRANSFERRED TO COMPLAINANT ACCU-FIND INTERNET SERVICES.
Domain Name Not Transferred