Domain Name - Domain name dispute resolution policy – Trademark - Common Law mark - Identical -  Bad faith registration - Bad faith use - No rights or legitimate interest - Legitimate noncommercial or fair use - Disrupting competitor's business – Purchase of competitors’ domain names.. 

Respondent is the owner of Tidewater Plastics, Complainant’s direct competitor.  Respondent registered the disputed domain name, www.NORVAPLASTICS.com ,which is also Complainant’s business name.  Respondent explained to Complainant that he would sell it to him for about $80,000.

Held, Name Transferred to Complainant.

Respondent’s domain name is identical to Complainant’s trademark registered for and in use by Complainant.  Complainant has common law rights in the mark Norva Plastics.  Respondent’s mark is identical to complainant’s mark, except for the addition of the domain name level designation, com.

Respondent has no rights or legitimate interests to the domain name.  Respondent is not commonly known by Complainant’s mark.  Respondent has made no claim that it is using the domain name in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use.  Respondent has not made use of the domain name in question, and has admitted to Complainant that he has no intention of using the domain name, but that he purchased it only because someone gave him the advice to purchase his competitors’ domain names.

Respondent registered and used the domain name in bad faith.  Respondent knew of Complainant’s business and corresponding mark.  Respondent also admitted that it knew it was registering its competitors’ domain names.  Registering a domain name primarily for the purpose of disrupting the business of a competitor is evidence of bad faith. 

Policies referred to
ICANN Uniform Domain Name Dispute Policy

Registration Agreements referred to
Network Solutions Service Agreement Version 5.0

Panel Decisions referred to
Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000).
Barney’s Inc. v. BNY Bulletin Board, D2000-0059 (WIPO April 2, 2000).
Telstra Corp. v. Nuclear Marshmallows, D2000-0003 (WIPO Feb. 18, 2000).

Cases referred to
Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 124 (4th Cir. 1990).
 

Harold Kalina, Panelist:
PARTIES
The Complainant is Norva Plastics, Norfolk, VA, USA ("Complainant"). The Respondent is Richard Vierrether of Chesapeake, VA, USA ("Respondent").
REGISTRAR AND DISPUTED DOMAIN NAME(s) 
The domain name at issue is "NORVAPLASTICS.COM", registered with Network Solutions Inc ("NSI").
PANELIST(s)
Judge Harold Kalina (Ret.) as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum ("The Forum") electronically on 06/06/2000; The Forum received a hard copy of the Complaint on 06/06/2000. 
On 06/15/2000, NSI confirmed by e-mail to The Forum that the domain name "NORVAPLASTICS.COM" is registered with NSI and that the Respondent is the current registrant of the name. NSI has verified that Respondent is bound by the Network Solutions Service Agreement Version 5.0 and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s UDRP.
On , a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of 07/06/2000 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via email, post and fax, and to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts by email. 
On 07/06/2000, 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 July 13, 2000, pursuant to Complainant’s request to have the dispute decided by a Single Member panel, The Forum appointed Judge Harold Kalina (Ret.) as Panelist.
Having reviewed the communications records in the case file, 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.
RELIEF SOUGHT
The Complainant requests that the domain name be transferred from the Respondent to the Complainant.
PARTIES’ CONTENTIONS
A. Complainant
The Complainant contends that the Respondent has registered a domain name that is identical to its trademark registered for and in use by the Complainant. Further, the Complainant contends that the Respondent has no rights or legitimate interests to the domain name, and that the respondent has registered and is using the domain name in bad faith. 
A. Respondent 
The Respondent submitted no response in this matter.
FINDINGS
The Complainant has been a plastics distributor for the past 59 years, since 1941. 
The Respondent is the owner of Tidewater Plastics, the Complainant’s direct competitor. The Respondent registered the domain name in question on 12/05/1999. 
On or about 03/11/2000, the Complainant’s president, Mr. Everton, contacted the Respondent. The Respondent explained to Mr. Everton that he would not use the domain name, but would sell it to him for about $80,000. The Respondent explained that he was only following the advice of a third party who told him to purchase the domain names of his direct competitors. 
On 04/19/2000, the Complainant requested that the Respondent terminate its rights in the domain name. The Respondent never replied to the Complainant’s request.
DISCUSSION 
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 support a claim 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 Complainant has common law rights in the mark Norva Plastics. See Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 124 (4th Cir. 1990) (finding that unregistered marks are protected just like registered marks). 
The Respondent’s mark is identical to the Complainant’s mark, except for the addition of the domain name level designation "com". See Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as "net" or "com" does not affect the domain name for the purpose of determining whether it is identical or confusingly similar). 
Rights or Legitimate Interests
The Complainant asserts that the Respondent has no rights or legitimate interests in the domain names in question. The Respondent has not denied that assertion.
The Respondent is not commonly known by the Complainant’s mark. Policy  4(c)(ii). Rather, the Respondent is the owner of Tidewater Plastics, and his business is known by this separate mark.
The Respondent has made no claim that it is using the domain name in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use. Policy  4(c)(i), (iii). The Respondent has not made use of the domain name in question. In fact, the Respondent admitted, in conversation with the Complainant, that he has no intention to use the domain name, but that he purchased it only because someone gave him the advice to purchase his competitors’ domain names. Some bona fide activity utilizing the domain name must be undertaken or content must be placed on the website to establish such rights or legitimate interest. See Barney’s Inc. v. BNY Bulletin Board, D2000-0059 (WIPO April 2, 2000). 
Based on the above, the panel concludes that the Respondent has no rights or legitimate interests in the domain name, NORVAPLASTICS.COM.
Registration and Use in Bad Faith
The Complainant asserts that the Respondent acted and is acting in bad faith. The Respondent has not denied that assertion.
As a former customer of the Complainant, the Respondent knew of Norva’s business and corresponding mark. The Respondent also admitted that he knew he was registering his competitors’ domain names. Registering a domain name primarily for the purpose of disrupting the business of a competitor is evidence of bad faith. Policy  4(b)(iii). 
 The Respondent has also admitted that he has no intention of using the domain name. This is evidence of bad faith. See Telstra Corp. v. Nuclear Marshmallows, D2000-0003 (WIPO Feb. 18, 2000) (finding that passive holding of a domain name is evidence of use of that domain name in bad faith).
The panel finds that the Respondent registered and used the domain name in bad faith.
DECISION
Having established all three elements required by the ICANN Policy Rule 4(a), it is the decision of the panel that the requested relief be granted. 
Accordingly, for all of the foregoing reasons, it is ordered that the domain name, "NORVAPLASTICS.COM", be transferred from the Respondent to the Complainant.

July 24, 2000
Honorable Harold Kalina,
Arbitrator