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.