Indexed as: [Salzman vs. Nassab]
Indexed as: [LITTLEFOLKART.COM]
National Arbitration Forum
Administrative Panel Decision
Commenced: June 26, 2000
Judgment: July 26, 2000
Forum File No.: FA0006000095014
Presiding Panelist: Daniel B. Banks, Jr.
Domain name - Domain name dispute resolution policy - U.S. Trademark - U.S. Domain name - Identical - Confusingly similar - Rights or legitimate interest - Bad faith registration - Bad faith use.
Complainant is owner of trademark
registration for LITTLE FOLK ART in association with a childrens furniture
store located in Santa Monica, California. Respondent registered
the domain name LITTLEFOLKART.COM in connection with the manufacture of
Jacquard lace textiles.
Held: Domain Name Not Transferred
Complainant states that Respondent
offered to sell the domain name to him for $150,000. Respondent states
that he purchased the domain name for use to showcase a children's lace
collection on the Internet and that he had no intention of reselling the
domain name to Complainant. Respondent states that he responded to
Complainants inquiry about the name only as a courtesy and calculated
his expenses up to that point and provided Complainant with the opportunity
to reimburse him for those expenses in exchange for the domain name.
Complainant has not met the burden
of proof with respect to each element for a finding of bad faith domain
name use and registration. While it is undisputed that the domain
name in question is identical to Complainants trademark, Respondent has
demonstrated his right or legitimate interest in the domain name.
Specifically, the domain name is being used by Respondent for a bona fide
offering of goods or services. In addition, Respondent has not registered
the name in bad faith. Complainant has not shown that the Respondent
has registered or used the domain name for any of the purposes enumerated
in s. 4(b) of the Policy. The fact that Respondent responded to Complainant's
inquiry about the name and the fact that he may have asked for more than
his out-of-pocket expenses in exchange for the domain name is not sufficient
without some evidence that this was his primary purpose in registering
the domain name. Complainant's request that the domain name LITTLEFOLKART.COM
be transferred is denied.
Policies referred to
Uniform Domain Name Dispute Resolution
Policy, adopted October 24, 1999
Service Agreements referred to
Network Solutions, Inc. Service Agreement, effective August 20, 1997
Cases referred to
--
Panel Decisions referred to
--
The above-entitled matter came on for an administrative hearing on July 24, 2000 before the undersigned on the Complaint of Mitchell D. Salzman, hereafter "Complainant", against Sam Nassab, "Respondent". There was no representation on behalf of either party. Upon the written submitted record, the following decision is made:
Procedural Findings
Domain Name: LITTLEFOLKART.COM
Domain Name Registrar: Network Solutions
Domain Name Registrant: Sam Nassab
Date Complaint Filed: June 21, 2000.
Date of Commencement of Administrative
Proceeding in Accordance with Rule 2(a) and Rule 4(c): June 26, 2000.
Due date for a Response: July 17,
2000. Respondent did submit a response to the Complaint.
Remedy Requested: Transfer of the
domain name to Complainant.
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 June 26,
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, the Internet Corporation for Assigned
Names and Numbers (ICANN), and the Complainant that the administrative
proceeding had commenced.
From the information submitted,
it appears that the Respondent originally registered the domain name LITTLEFOLKART.COM
with Network Solutions on or about August 20, 1999. By such registration,
the Respondent agreed to resolve any dispute regarding his domain name
through ICANN's Rules for Uniform Domain Name Dispute Resolution Policy.
Findings of Fact
1. That Complainant is the owner
of Little Folk Art Store located in Santa Monica, California, which said
store has been in the business of children's furniture since 1990.
2. On February 25, 1997, the United
States Patent and Trademark Office registered the LITTLE FOLK ART mark
which remains in full force and effect.
3. Complainant started a mailer
service for his business in the form of newsletter/catalog 5 years ago
under the name little folkster.
4. It is Complainant's contention
that the name little folkster is similar to Little Folk Art and that the
newsletter/catalog mailer service has resulted in the name Little Folk
Art being associated with children's interests.
5. Complainant states that the domain
name is registered and is being used in bad faith because the Respondent
offered to sell the domain name to Complainant for $150,000 in the summer
of 1999.
6. Respondent is a manufacturer
of Jacquard lace textile curtains and tablecloths located in Iran with
branch offices in England and Germany. As such, Respondent wholesales products
throughout the world except for the United States due to U.S. sanctions
against Iranian goods.
7. For the past year, Respondent
has been working on creating designs for a new children's lace collection.
8. Respondent states that he purchased
the domain name for use to showcase this children's lace collection on
the Internet.
9. Respondent states that he has
not yet displayed these products on the Internet because the design and
development of this new line of products is a time consuming process.
10. Respondent states that he did
not purchase the domain name with the intention of reselling it to Complainant.
11. Respondent states that he responded
to Complainant's inquiry about the name only as a courtesy and, after discussion
with his business associates, calculated their expenses up to that point
and provided Complainant with the opportunity to reimburse them for those
expenses in exchange for the domain name.
Discussion
On October 24, 1999, the Internet
Corporation for Assigned Names and Numbers ("ICANN") adopted the Uniform
Domain Name Dispute Resolution Policy which sets forth the elements that
a complainant must prove to show that a respondent has registered and used
a domain name in bad faith. Specifically, the complainant must prove each
of the following:
i. Respondent's domain name is identical
or confusingly similar to a trademark or service mark in which the complainant
has rights;
ii. Respondent has no rights or
legitimate interests in respect of the domain name;
iii. Respondent has registered and
is using the domain name in bad faith.
It is the opinion of the undersigned,
that Complainant has not met the burden of proof with respect to each of
the above elements for the following reasons:
1 - It is undisputed that the domain
name is identical to Complainant's trademark in which the Complainant has
rights.
2 - The Respondent has demonstrated
his right or legitimate interest in the domain name. Specifically, the
domain name is being used by the Respondent for a bona fide offering of
goods or services.
3 - The Respondent has not registered
the name in bad faith. Section 4(b) of the ICANN Uniform Domain Name Dispute
Policy provides that evidence of bad faith registration and use can consist
of the following circumstances:
i. circumstances indicating that
the Respondent has registered or 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 the complainant for valuable consideration in
excess of documented out-of-pocket costs directly related to the domain
name; or
ii. the respondent has registered
the domain name in order to prevent the owner of the trademark or service
mark from reflecting the mark in a corresponding domain name, provided
that the respondent has engaged in a pattern of such conduct; or
iii. the respondent has registered
the domain name primarily for the purpose of disrupting the business of
a competitor; or
iv. by using the domain name, the
respondent has intentionally attempted to attract, for commercial gain,
Internet users to the respondent's web site or other on-line location,
by creating a likelihood of confusion with the complainant's mark as to
the source, sponsorship, affiliation, or endorsement of respondent's web
site or location or of a product of service on the respondents web site
or location.
Complainant has not shown that the
Respondent has registered or used the domain name for any of the purposes
set out above. The fact that he responded to Complainant's inquiry about
the name and the fact that he may have asked for more than his out-of-pocket
expenses in exchange for the domain name is not sufficient without some
evidence that this was his primary purpose in registering the domain name.
Conclusion
The undersigned certifies that he
has acted independently and has no know 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. The domain name LITTLEFOLKART.COM,
registered to the Respondent is identical to Complainant's service mark.
2. The Respondent has demonstrated
a right or legitimate interests in said name.
3. Respondent did not register,
acquire or use the domain name in bad faith.
Decision
Based upon the above findings and
conclusions, and pursuant to Rule 4(I), it is decided as follows:
That the Complainant's request that
the domain name LITTLEFOLKART.COM be transferred is denied.
Dated: July 26, 2000,
by Judge Daniel B.
Banks, Jr.,
Arbitrator.
Domain Name Not Transferred