Nuhad Khoury Cosmetics & Perfumery, Inc.
v.
Ahmed Hindawi
[Indexed as: tiba.com]
Administrative Panel Decision
Case No. AF-00215
Commenced: 28 May 2000
Judgment: 29 June 2000
Presiding Panelist: David Allsebrook
Domain name Domain name dispute resolution policy United States - Trademark Service mark Identity Legitimate interests Borders - Bad faith registration Bad faith use Broker Offer of Sale Greatdomains.com City directory Trademark not international .
Complainant had registered the United States trademarks and service marks tiba and tiba vita. An Arabic translation of the name tiba relates to an ancient Egyptian capital city, now known as Luxor. Respondent, a resident of Luxor, obtained the domain name in question to operate a website about the city. Respondent has parked the domain and is offering it for sale through a broker, GreatDomains.com.
HELD, Name Not Transferred to Complainant.
Complainant has demonstrated the identity of the domain name and its trademark.
Complainant was unable to show that Respondent had an illegitimate interest. Complainants trademark rights did not extend beyond the borders of the United States and as Respondent lived in Luxor, the adoption in Egypt of tiba.com does not mean that it is illegitimate.
Respondent did not register the domain in bad faith as Respondent did not acquire the domain name primarily for the purpose of selling, renting or otherwise transferring it. As stated previously, Respondent acquired it to establish a website about the city of Luxor. Respondent did not set upon to sell it to the owner of the service mark.
Even though, Respondent detailed The Internet Business Association in his description of tiba.com, this was just a suggested usage of the domain name to potential buyers and there was no evidence to suggest that this entity existed or that it was one of Complainants competitors. Thus, as there was no finding of use of the domain name, no bath faith usage could be ascribed to Respondent.
Policies referred to:
ICANN Uniform Name Dispute Resolution Policy
Panel decision referred to
--
Allsebrook, Panelist
1. Parties and Contested Domain Name
The complainant, Nuhad Khoury Cosmetics & Perfumery, Inc., is located
in Nashville, Tennessee. The complainant's representative is I.C. Waddey
of Nashville, Tennessee.
The respondent, Ahmed Hindawi, is located at Cairo, Egypt.
The contested domain name is tiba.com.
Remedy sought: Transfer.
2. Procedural History
The electronic version of the complaint form was filed on-line through
eResolution's website on May 2, 2000. The hardcopy of the complaint form
was received on May 8, 2000. Payment was received on May 8, 2000.
Upon receiving all the required information, eResolution's clerk proceeded
to:
-confirm the identity of the registrar for the contested domain name;
-verify the registrar's whois database and confirm all the required
contact information for respondent;
-verify if the contested domain name resolved to an active web page;
-verify if the complaint was administratively compliant.
The inquiry lead the clerk of eResolution to the following conclusions:
the Registrar is Network Solutions, Inc., the Whois database contains all
the required contact information including the billing contact and the
contested Domain Name resolves to an active Web page and the complaint
is administratively compliant.
An email was sent to the Registrar by the eResolution Clerk's Office
to confirm the name of the billing contact and to obtain a copy of the
Registration Agreement on May 8, 2000. The requested information was received
May 15, 2000.
The Clerk's Office then sent a copy of the complaint form and the required
cover sheet to the respondent in accordance with paragraph 2(a) of the
ICANN's rules for Uniform Domain Name Dispute Resolution Policy.
On May 28, 2000, the respondent submitted, via the eResolution internet
site, his response. The signed version of the response was not received.
3. Factual Background
The complainant has registered the trade-mark "tiba" in the United
States for face, body and hair beauty salons and health spas. The registration
is for services (in the United States such trade marks are called "service
marks"). A related trade mark "tiba vita" is also registered in the United
States for diet planning and supervision, fitness consultation, cosmetic
and colour analysis, health spa services and fashion consultation services.
"Tiba" is the Arabic name of Thebes. Thebes is the ancient Egyptian
capital city. It is now known as Luxor. Luxor is an important city for
tourism and artifacts. The domain name tiba.com is not in use in association
with the provision of goods and services. It is "parked" at; and is offered
for sale through a broker, GreatDomains.com.
The description of tiba.com on the GreatDomains.com website says the
following: "The Internet Business Academy, Association, Assembly, Associates,
Tiba is also the Arabic name of Thebes,
" This description appears to
people reviewing the details of the domain name, including its asking price,
on the GreatDomains.com website. Originally, no asking price was indicated.
The complainant made an offer of $300.00 for the domain name through the
broker which was declined without comment or counteroffer. After the offer
was rejected an asking price of $3,000.00 was posted.
The respondent was born, lives and works in Luxor, Egypt. He obtained
the domain name to use to operate a website about the city. It is to be
a city directory. The domain names Thebes.com and Luxor.com were already
taken when the respondent selected the name. The respondent has contacted
many businesses in Luxor to offer them a place in the proposed tiba.com
directory. He offers to list their businesses in this directory for $100.00
per year with an option to have a website as a subdomain. A subdomain would
cost $200.00 per year. For example, the Fardoos Hotel can use the u.r.l.
http://fardoos.tiba.com. Some prospective clients have paid for the year
2001.
The respondent has invested time and money marketing the idea of an
on-line directory of businesses in Tiba. He feels there is value in having
a short meaningful domain name tiba.com rather than a longer version such
as tiba.city.com. The fact the website is not up and running and is due
to his incomplete attempts to get paying clients to finance the website
and because he is overwhelmed by his publishing business and has no time
to work on it.
The respondent states that he was not aware of the complainant or its
service mark at any time before he got the complainant through eResolution.
He was not trying to sell the domain name specifically to the complainant
or to anyone. He points out that the complainant did not contact him directly
and that the $300.00 bid reached him through GreatDomains.com. The identity
of the bidder was not revealed to the respondent.
4. Parties' Contentions
The complainant's contention is that the registrant has not acquired
any rights in tiba.com and is not using it to provide goods and services.
The complainant alleges that the offer for sale of the domain name is use
in bad faith. The $3,000.00 asking price is said to be much more than the
cost of the domain name. Further, the complainant asserts that the respondent
is intending to sell tiba.com to the owner of the service mark "tiba",
to prevent its use by the service mark owner by selling it to the general
public, or to drive up the price of the sale to the service mark owner
by enticing third parties to purchase it. The complainant suggests that
"The Internet Business Associations", as identified in the GreatDomains.com
posting, is one such third party being so enticed by the advertisement.
The respondent says that as a person born in Tiba, living in Tiba and
working in Tiba, who wishes to create a website about Tiba for businesses
purposes, he has a legitimate interest in using tiba.com as a domain name
for that purpose. He has already invested money in establishing that business.
The respondent explains the listing of tiba.com for sale on GreatDomains.com
in two ways. He says that he listed it without any intention of selling
it, but just to see how much a domain name can be attractive through offers
he may receive for it. He says it can help him determine how much marketing
value that domain name can bring to a website about the city. Besides,
he states that there is always the possibility that someone will offer
him enough for it that he would have an incentive to sell it and to use
a different domain name for his proposed online directory about Tiba (Luxor).
5. Discussion and Findings
The applicable provisions of the ICANN Uniform Name Dispute Resolution
Policy are found in section 4 of the Policy. The complainant has the onus
of showing that the registrant has a domain name identical to its service
mark, that the respondent has no rights or legitimate interest in respect
of the domain name, and that the domain name has been registered and is
being used in bad faith.
The complainant has demonstrated the identity of the domain name and
its trade mark.
The complainant has not made out either of the latter two grounds.
The respondent has a legitimate interest in the tiba.com domain name.
It is a former name of the city he lives in. He intends to use it in connection
with a business related to that city. The complainant's trade mark rights
are not alleged to extend beyond the borders of the United States. There
is no allegation the mark is used, registered or known outside the United
States. Accordingly, there is no reason to suppose that its adoption in
Egypt by an Egyptian is illegitimate.
Further, the allegation is that the domain name was registered and
is being used by the respondent in bad faith. The policy provides the following
example of bad faith:
"circumstances indicating that you [the respondent] have registered
or you have acquired the domain name primarily for the purpose of selling.
renting, or otherwise transferring the domain name registration to the
complainant who is the owner of the trademark or service mark or to a competitor
of that complainant, for valuable consideration in excess for your documented
out of pocket costs directly related to the domain name;"
The respondent did not acquire the domain name primarily for the purpose
of selling, renting or otherwise transferring it. He acquired it primarily
for the purpose of establishing a web site dealing with the city of Luxor.
Second, the respondent did not set out to sell the domain name to the owner
of the service mark. There was no owner of the service mark in Egypt. The
respondent had never heard of the complainant, the owner of the service
mark in the United States. He made no attempt to contact the complainant
even after it made a bid for the domain name. Mr. Hindawi did not make
a counter-offer when the complainant made a bid for the domain name.
There is no evidence that "The Internet Business Association" existed
or that it is a competitor of the complainant. It is plainly just a suggested
use of the domain name made to potential buyers.
In view of the finding that no bad faith can be attributed to the respondent,
I make no finding as to whether there has been "use" of the domain name.
6. Conclusions
The Complaint is dismissed.
7. Signature
Signed at Toronto,
Ontario this 29th day of June, 2000.
(s) David G. Allsebrook
Presiding Panelist