Domain name - Domain name dispute resolution policy - DBA name - Identical - Confusingly similar - Bad faith registration - Prior business relationship - Intent to use domain name.

Complainant is registrant of DBA names “The Drain Station” and “Northwest Plumbing”.  Respondent registered the domain names DRAINSTATION.COM AND NORTHWEST PLUMBING.COM.  Complainant alleges that Respondent has no present legitimate interest in the names and registered them in bad faith.

Held, names transferred to the Complainant.

Complainant had a past business relationship with Respondent’s brother at which time they registered “Northwest Plumbing” together.  Respondent’s brother is no longer associated with “Northwest plumbing” and the DBA name has since been transferred to Complainant.  Respondent had registered the DBA name “The Drain Station”.  After the registration elapsed, Complainant registered “The Drain Station”.  Respondent contended that he intended to use both names but could not prove that he was presently using them.

It is clear that DRAINSTATION.COM and NORTHWEST PLUMBING.COM are identical or confusingly similar to the DBA names registered by Complainant. 

Intent to use a domain name cannot be used as prove against bad faith use.  Respondent showed no right or legitimate interest in the domain names.  Respondent’s registration of the domain names was in bad faith and was intended to disrupt the business of Complainant.

Policies referred to

Uniform Domain Name Dispute Resolution Policy, adopted August 26, 1999

Panel Decision referred to
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Buchele, Panelist: -

The above entitled matter came on for an administrative hearing on April 3, 2000, before the undersigned on the Complaint of Northwest Plumbing Drain Station, Inc., hereafter "Complainant", against Sumner Plumbing, hereafter "Respondent". The parties appear in this proceeding pro se.

PROCEDURAL FINDINGS
Domain Name: Northwestplumbing.com and Drainstation.com
Domain Name Registrar: Network Solutions, Inc.
Domain Name Registrant: Sumner Plumbing
Date of Domain Name Registration: December 26, 1997
Date Complaint Filed: February 22, 2000
Date of Commencement of Administrative Proceeding in Accordance with Rule 2(a) and Rule 4(c): February 28, 2000.
Due date for a Response: March 20, 2000.

After reviewing the Complaint, and determining it to be in administrative compliance, the National Arbitration Forum (The Forum) forwarded the Complaint to the Respondent on February 28, 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, Inc. (Network Solutions), the Internet Corporation for Assigned Names and Numbers (ICANN), and the Complainant that the administrative proceeding had commenced. The Respondent responded to The Forum by letters dated March 16, 2000 and March 28, 2000 pursuant to Rule 5(a).

On December 26, 1997, Respondent registered the domain names "Northwestplumbing.com" and "Drainstation.com" with Network Solutions, the entity that is the Registrar of the domain name. On February 22, 2000, Network Solutions verified that Respondent is the Registrant for the domain names "Northwestplumbing.com" and "Drainstation.com", and that further by registering its domain name with Network Solutions, 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 AND CONCLUSIONS
1. The Complainant is a corporation engaged in the plumbing business. The record in this case does not reveal when the corporation was formed or when the business name of Northwest Plumbing Drain Station, Inc. was first used. Complainant's business address is Ferndale, Michigan. Johnny Lococo owns the Complainant corporation. 

2. The Respondent is a plumbing business operated by Gary Sumner. Sumner has been engaged in the plumbing business under the business name of Sumner Plumbing at least since 1985. Respondent's business address is Royal Oak, Michigan. 

3. Ronald Steven Sumner brother of Respondent Gary Sumner operated a plumbing business under the name of Northwest Plumbing in 1993. 

4. Sometime in 1993 or 1994, Ronald Sumner associated himself with Johnny Lococo in his plumbing business. They subsequently registered the DBA name "Northwest Plumbing" in their joint names. 

5. Ronald Sumner eventually became inactive in Northwest Plumbing. Sometime in 1996, Lococo terminated Sumner's Master Plumber License with the business and has solely operated Northwest Plumbing as his own company since that time. 

6. When the Northwest Plumbing DBA expired in 1999, Lococo registered Northwest Plumbing in his own name. 

7. In 1984, Gary Sumner was the registered DBA owner of the business name. "The Drain Station". The record does not reveal when he obtained the DBA rights to that name under Michigan law, but he did not renew the DBA registration when it expired. In 1993, Johnny Lococo registered "The Drain Station" in his own name. 

8. Respondent Gary Sumner states that in 1985, he "owned and operated a company called 'The Drain Station'" and that he had advertised using the name "The Drain Station" "while Mr. Lococo and his father were driving an ice cream truck". Mr. Lococo states he drove an ice cream truck in 1978, and that his father died in 1984. Respondent has furnished no other evidence of the use of the name "The Drain Station" in his business. 

9. Respondent Gary Sumner states that he and his brother Ronald Sumner "had every intention of using the names 'Northwest Plumbing' and 'The Drain Station'". Mr. Donald Ward, General Manager of Sumner Plumbing states that Gary Sumner "had every intention of using" "The Drain Station" name. "intent" to use a business name is inferior to the actual use of a business name when establishing priority to a particular name. 

10. The Respondent registered the domain names "Northwestplumbing.com" and "Drainstation.com" in bad faith and has no rights or legitimate interests in respect to said domain names. The following is evidence of bad faith: 1. At the time Respondent Gary Sumner registered the domain names "Northwestplumbing.com" and "Drainstation.com" on December 26, 1997, his competitor, Johnny Lococo, was actively engaged in a plumbing business called Northwest Plumbing Drain Station in the same geographical area. 

2. At the time Respondent Gary Sumner registered the domain name "Northwestplumbing.com" and "Drainstation.com", he was making no current business use of those names. 

3. At the time Gary Sumner registered the domain names "Northwestplumbing.com" and "Drainstation.com", Johnny Lococo had registered the right to use these business names under the DBA laws of the State of Michigan. 

4. That Respondent Gary Sumner registered the domain names primarily for the purpose of disrupting the business of his competitor Northwest Plumbing Drain Station, Inc., the Complainant herein. 11. The Complainant's prayer for relief requests that the domain names "Northwestplumbing.com" and "Drainstation.com" be transferred from Respondent to Complainant.

DECISION
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 neutral, the undersigned makes the following DECISION: 1. Based upon the foregoing Findings and Conclusions, I find the domain names registered by the Respondent are nearly identical or confusingly similar to the business name of the Complainant; that Respondent has no legitimate interest with respect to the domain names of "Northwestplumbing.com" and "Drainstation.com"; that Respondent registered the domain names in bad faith for the primary purpose of disrupting the business of a competitor, the Complainant herein.  Accordingly, pursuant to Rule 4(i), it is decided that the domain names
"Northwestplumbing.com" and "Drainstation.com" should be transferred from Respondent to the Complainant.

Dated: April 4, 2000 
Judge James P. Buchele (Retired)
Arbitrator