Generic Top Level Domain Name (gTLD) Decisions

The Complainant is Jeff Gilbert, Seattle, WA, USA ("Complainant"). The Respondent is Clausen Enterprises, Bellevue, WA, USA ("Respondent").

The domain name at issue is "MANSPLAT.com", registered with Network Solutions Inc ("NSI").

The Panelist James P. Buchele certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as the panelist in this proceeding.

Complainant submitted a Complaint to the National Arbitration Forum ("The Forum") electronically on 08/22/2000; The Forum received a hard copy of the Complaint on 08/23/2000.

On 08/22/2000, NSI confirmed by e-mail to The Forum that the domain name "MANSPLAT.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 Agr eement Version 4.0 and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s UDRP.

On 08/24/2000, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of 09/13/2000 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via e -mail, post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts, and to postmaster@mansplat.com by e-mail.

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, September 15, 2000 pursuant to Complainant’s request to have the dispute decided by a Single Member panel, The Forum appointed James P. Buchele as Panelist.

Having reviewed the communications records, 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 notic e 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, withou t the benefit of any Response from the Respondent.

The Complainant requests that the domain name be transferred from the Respondent to the Complainant.

A. Complainant

The Complainant asserts that the domain name is identical to the name used to market the Complainant’s magazine and products. The Complainant asserts that the Respondent has no legitimate interest in the domain name. The Complainant asserts that the do main name was registered and is being used in bad faith.

B. Respondent

The Respondent has failed to submit a response in this UDRP proceeding. Because Respondent has failed to submit a response to the Complaint based on the Policy, the Panel accepts as true all allegations set forth in the Complaint. Uniform Rule 14(b). See Talk City, Inc. v. Robertson, D2000-0009, (WIPO Feb. 29, 2000) ("In the absence of a response, it is appropriate to accept as true all allegations of the Complaint").

The Complainant is the creator of the name "ManSplat." This name was conceived in early 1996. On August 1, 1996, the Complainant began publishing ManSplat Magazine, a free publication. Advertising primarily supports the Magazine.

In addition, the Complainant has marketed goods, such as ManSplat t-shirts, banners, stickers, and posters.

In approximately May 1999, the Complainant sought to register the domain name in question. At that time, the domain name was registered to the Respondent. The Respondent registered the domain name on April 22, 1999. The Complainant contacted the Respon dent. The Respondent told the Complainant that he was a fan of the magazine and had the idea of serving as the magazine’s Webmaster, sharing in the advertising revenues with the Complainant. The Complainant informed the Respondent that he was not interest ed in having the Respondent serve as Webmaster or share in the magazine’s profits. The Respondent told the Complainant that it would cost the Complainant $5,000 to transfer the domain name.

The Respondent has made no use of the website located at "MANSPLAT.COM."

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 obtain an order 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.

The Complainant is using the mark "ManSplat" as a tradename. This trade name has been in continuous use since 1996. Due to this continuous use, the name has acquired secondary meaning in connection with the Complainant’s goods and services. See Roberts v. Boyd, D2000-0210 (WIPO May 29, 2000) (finding that trademark registration was not necessary and that the name "Julia Roberts" has sufficient secondary association with the Complainant that common law trademark rights exist). The Complainant has satisfied this Panel that it has common law rights in the trade name <ManSplat>.

The Respondent’s domain name is identical to the Complainant’s trade name. See Europolitan AB. v. Control Alt Delete AB, D2000-0609 (WIPO Aug. 16, 2000) (finding that the domain name <europolitan.com> is identical with the trademark <EU ROPOLITAN> except for the addition of ".com").

The Complainant asserts that the Respondent has no legitimate interest in the domain name. The Respondent has not denied this assertion.

The Respondent does not meet the criteria in Policy ¶ 4.c. for demonstrating rights or legitimate interests in the domain name. The Respondent is not known by the domain name nor has made any bona fide or noncommercial use of the domain name. Policy ¶ 4.c.(i) – (iii). See McNeil Consumer Brands Inc v. Mirweb Solutions, D2000-0612 (WIPO Aug. 3, 2000) (finding that the Respondent has no rights or legitimate interest in respect of the domain name "tylenol.org"). The Respondent has no rights or legitimate interests in the domain name.

The Complainant asserts that the domain name was registered and is being used in bad faith.

The Respondent offered the domain name for sale to the Complainant for $5,000—a price in excess of out of pocket costs directly related to the domain name. Policy ¶ 4.b.(i). The Respondent’s main purpose in registering the dom ain name was to infringe on the Complainant’s trade name, to force the Complainant to engage in business with the Respondent. When the Complainant refused the Respondent’s offer, the Complainant offered to sell the domain name. The Panel determines that t he Respondent acquired the domain name in order to profit from the Complainant’s successful magazine either by cutting into the Complainant’s advertising profit or forcing the Complainant to purchase the domain name. This is evidence of registration and u se in bad faith.

The Complainant has sufficiently proven that the Respondent registered and used the domain name in bad faith by violating Policy ¶ 4.b. (i).

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, "MANSPLAT.COM", be transferred from the Respondent to the Complainant.

James P. Buchele

Arbitrator

Dated: September 16, 2000