Domain name - Domain name dispute resolution policy - U.S. Trademark - Bad faith registration – Legally protectable rights – Domain Use – Legitimate Interests.

The Complainant is the owner of the trademark "CYBERGAUGE" that was registered with the United States Patent and Trademark Office.  The Complainant has been selling goods domestically, internationally and over the Internet under the name "CyberGauge".  The Respondent registered the domain name cybergauge.com.

Held, Name Transferred to Complainant.

The Complainant has valuable and legally protectable rights in the mark: "CYBERGAUGE," dating back four years or more.

The Respondent has not used and has no legally protectable rights in the mark "CYBERGAUGE" and has refused to relinquish or transfer the domain, cybergauge.com, to Complainant except for an exorbitant premium. This was found to be ample evidence of bad faith on the part of Respondent to entitle Complainant to relief as sought.

Policies referred to

ICANN's Rules for Uniform Domain Name Dispute Resolution Policy
Uniform Domain Name Dispute Resolution Policy

Registration Agreements referred to

Network Solutions Service Agreement Version 5.0

Panel Decision referred to
--

Hon. Carmody (ret.), Panelist: -

The above-entitled matter came on for an administrative
hearing on March 13, 2000 before the undersigned arbitrator
on the Complaint of Michael J. Swan, representative of Neon
Software, Inc. ("Neon" or "Complainant"), against Daniel Begg
("Begg" or "Respondent") who did not submit a response or
otherwise appear personally or through counsel. Upon the
written submitted record including only the Complaint, the
following DECISION is rendered:

PROCEDURAL FINDINGS

Domain Name: cybergauge.com

Domain Name Registrar: Network Solutions

Domain Name Registrant: Daniel Begg

Date of Domain Name Registration: January 12, 2000

Date Complaint Filed: February 3, 2000

Date of Commencement of the Administrative Proceeding in
Accordance with Rule 2(a) and 

Rule 4(c)[1]: February 4, 2000.

Due Date for Response: February 28, 2000. No Response
filed.

After reviewing the Complaint, and determining it to be in
administrative compliance, the National Arbitration Forum
("Forum") forwarded the Complaint to the Respondent, on
February 4, 2000 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 that the administrative proceeding
had commenced. The Complaint was then docketed and
forwarded to the undersigned arbitrator for decision.
Respondent did not submit a response to the Forum within
twenty (20) days pursuant to Rule 5(a).

 FINDINGS OF FACT

1. On February 8, 2000, Network Solutions confirmed that
Respondent registered the domain name "cybergauge.com"
under the registrant name Daniel Begg, 1404 Windsor Drive,
Brockville, ON, K6V 5X4 Canada, showing Begg, Daniel,
[email protected], 613 342 1942, as Administrative
Contact. Network Solutions acknowledged the commencement
of this administrative proceeding and that Respondent is bound
by the Network Solutions Service Agreement Version 5.0.
Accordingly, Respondent agreed to resolve any dispute
regarding its domain name registration pursuant to ICANN's
Rules for Uniform Domain Name Dispute Resolution Policy
and the Uniform Domain Name Dispute Resolution Policy.
Neither the Complainant nor Respondent contest the
jurisdiction of the Forum or the undersigned arbitrator to
resolve this controversy.

2. By virtue of the fact that there is no appearance of any kind
by Respondent, all reasonable inferences of fact in the
allegations of the Complaint will be taken to be true.

3. Complainant is the owner of a trademark registered with the
United States Patent and Trademark Office under Reg. No.
2,073,649 on June 24, 1997, the mark being
"CYBERGAUGE."

4. Complainant has been selling goods domestically,
internationally and over the Internet under the name
"CyberGauge" since March 31, 1996.

5. Email correspondence between Complainant and
Respondent strongly suggests that Respondent has not "had a
chance to anything" with the cybergauge.com domain as of a
few days after acquiring it in January of 2000 and that he is
seeking to obtain $700.00 (US) from Complainant to relinquish
the domain name. The acquisition price of the domain name
paid by Respondent was $70.00 (US).

CONCLUSION

The undersigned certifies that he has acted independently and
has no known conflict of interest to serve as the Arbitrator in
this proceeding. Having been duly selected, and being
impartial, the undersigned makes the following findings and
conclusions:

1. Complainant has valuable and legally protectable rights in
the mark: "CYBERGAUGE," dating back four years or more.

2. Respondent has not used and has no legally protectable
rights in the mark "CYBERGAUGE" and has refused to
relinquish or transfer the domain, cybergauge.com, to
Complainant except for an exorbitant premium. I find this to be
ample evidence of bad faith on the part of Respondent to entitle
Complainant to relief as sought.

DECISION

Based upon the above findings and conclusions, and pursuant
to Rule 4(i) of the ICANN's Rules for Uniform Domain Name
Dispute Resolution Policy and the National Arbitration
Forum's Supplemental Rules to ICANN's Uniform Domain
Resolution Policy, it is decided as follows:

THE UNDERSIGNED DIRECTS THAT THE DOMAIN
NAME "CYBERGAUGE.COM," REGISTERED BY
RESPONDENT DANIEL BEGG, BE TRANSFERRED TO
COMPLAINANT NEON SOFTWARE, INC.

Signed this 13th day of March, 2000 by Judge James A.
Carmody (Retired), arbitrator.

Honorable James A. Carmody