The Wire Association International, Inc.
v.
Wirenet Host
[Indexed as: The Wire Association International, Inc. v. Wirenet Host]
[Indexed as: WIRENET.COM]
National Arbitrational Forum
Administrative Panel Decision
Case No. FA0006000095006
Commenced: 20 June 2000
Judgment: 17 July 2000
Presiding Panelist: James A. Carmody
Domain name Domain name dispute resolution policy Trademark Identical Confusingly Similar Addition of suffix - Rights - Legitimate interest Misleading information Confusion - Bad faith registration Bad faith use.
Complainant owns the registered trademark wirenet. Respondent registered the domain name wirenet.com.
HELD, Name Transferred to Complainant.
Because Respondent did not respond to Complainants assertions, reasonable inferences of fact in the Complainants assertions will be deemed true.
The Panel finds wirenet.com to be identical to Complainants registered mark wirenet because the addition of a net or com suffix to the domain name does not affect this determination. Complainant has no rights or legitimate interests in the domain name wirenet.com as Respondent has made neither legitimate use of wirenet.com, used it in connection with a bona fide offering of goods and services nor is commonly known by wirenet.com.
Respondent acted and is acting in bad faith as the information listed in the WHOIS database is inaccurate and purposefully misleading given the nonfunctional e-mail address and telephone number as well as the intentional disregard of the correspondence in this issue.
Respondent has registered and used the domain name in bad faith as Respondent, by using the domain name wirenet.com, has created confusion with Complainants mark. To this end, Respondent has attempted to attract Internet users to its website for commercial gain.
Policies referred to:
ICANN UDRP Rules
ICANN URDP Policy
Cases referred to:
Rollerblade Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000)
America Online, Inc. v. QTR Corp., FA 92016 (Nat. Arb. Forum May 9,
2000)
Travel Services, Inc. v. Tour Coop of Puerto Rico, FA 92524 (Nat. Arb.
Forum Feb 29, 2000)
PARTIES
The Complainant is The Wire Association International, Inc., Guilford,
CT, USA ("Complainant"). The Respondent is Wirenet Host, Merrifield, VA,
USA ("Respondent").
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is WIRENET.COM, registered with Network
Solutions, Inc. (NSI).
PANELIST
Hon. James A. Carmody, as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
("The Forum") electronically on June 12, 2000; The Forum received a hard
copy of the Complaint on 06/12/2000.
On June 15, 2000, NSI, confirmed by e-mail to The Forum that the domain
name WIRENET.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 ICANNs UDRP.
On June 20, 2000, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of July
10, 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 Respondents registration as technical, administrative
and billing contacts by email.
On July 10, 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 12, 2000, pursuant to Complainants request to have the
dispute decided by a Single Member panel, The Forum appointed the Hon.
James A. Carmody 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 Forums 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 that domain name be transferred from
Respondent to Complainant or be cancelled.
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.
B. Respondent
The Respondent has submitted no response in this matter. As a
result, all reasonable inferences of fact in the allegations of the Complainant
will be deemed true.
FINDINGS
The Complainant owns the registered trademark WIRENET (first used in
commerce June 1, 1996; registered January 19, 1999; No. 2,218,858) to promote
the interests of the wire industry and wire trade.
The Respondent registered the domain name in question on March 27,
1998.
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
in order to demonstrate claims 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;
and
(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 rights in the registered mark, WIRENET. The
Respondents domain name is identical to the Complainants 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 has made no legitimate use of the domain name at issue.
The Respondent has not used the domain name in connection with a bona fide
offering of goods and services nor is the Respondent commonly known by
the domain name, as set forth in the Policy 4(c)(i) (iii).
For the above stated reasons, the panel concludes that the Respondent
has no rights or legitimate interest in the domain name WIRENET.COM.
Bad Faith
The Complainant asserts that the Respondent acted and is acting in
bad faith. The Respondent has not denied that assertion.
The Complainant contends that the information listed in the WHOIS database
is inaccurate and purposefully misleading based on the nonfunctional e-mail
address and telephone number and intentional disregard of the correspondence
in this issue. Providing incomplete and/or false information in the
WHOIS directory is evidence of bad faith in domain name disputes. See America
Online, Inc. v. QTR Corp., FA 92016 (Nat. Arb. Forum May 9, 2000).
By using the domain name in question, the Respondent has intentionally
attempted to attract, for commercial gain, Internet users to its website
by creating a likelihood of confusion with the Complainants mark.
Policy 4(b)(iv). See Travel Services, Inc. v. Tour Coop of
Puerto Rico, FA 92524 (Nat. Arb. Forum Feb 29, 2000) (holding that using
domain names which imitate an established tradename misleadingly diverts
consumers as well as tarnishing the trademark or service mark of the Complainant).
This is evidence of registration and use of a domain name in bad faith.
Policy 4(b)(iv).
For the previously stated reasons, the Respondent has registered and
is using 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, WIRENET.COM, be transferred from the Respondent to the Complainant.
James A. Carmody, Judge (Ret.), Arbitrator
Dated: July 17, 2000