Generic Top Level Domain Name (gTLD) Decisions

The Complainant is The Energy Authority, Jacksonville, FL, USA ("Complainant"). The Respondent is Chris Maslowski, Dublin, CA, USA ("Respondent").

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

Each Panelist 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.

Hon. John Upchurch, Hon. M. Kelly Tillery and Hon. James A. Carmody, Chairman, as Panelists.

Complainant submitted a Complaint to the National Arbitration Forum ("The Forum") electronically on July 31, 2000; The Forum received a hard copy of the Complaint on August 10, 2000.

On July 31, 2000, NSI confirmed by e-mail to The Forum that the domain name "TEAINC.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 Ag reement Version 4.0 and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s UDRP.

On August 14, 2000, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 5, 2000 by which Respondent could file a Response to the Complaint, was transmitted to Resp ondent 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@teain c.com by e-mail.

On September 12, 2000, pursuant to Complainant’s request to have the dispute decided by a Three Member panel, The Forum appointed the Hon. John Upchurch, the Hon. M. Kelly Tillery and the Hon. James A. Carmody, Chairman, as Panelists.

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

A. Complainant

Complainant asserts that the domain name at issue is identical or confusingly similar to its service mark, TEA, and its existing domain: www.teainc.org. The Compla inant further alleges that the Respondent has no legitimate rights or interests in the domain name and that Respondent registered the domain at issue in bad faith as evidenced by several offers to sell the domain for more than out-of-pocket cost.

B. Respondent

The Respondent has been in the business of selling "tea" and other products over the Internet since 1997 at www.bodyofmine.com and wishes to move that business to www.TEAINC.com, the domain at issue. Accordingly, Respondent claims considerable rights and legitimate business interests in the domain. Further, Respondent denies that it acquired the domain in bad faith or that was improper to offer to sell the doma in to Complainant for more than out of pocket costs.

Complainant is a non-profit, national, wholesale electric power and gas marketing organization formed in 1997 as The Energy Authority. "TEA," as it calls itself, maintains a web presence at www.teainc.org. No state or federal registration of the TEA mark is claimed, so it will be presumed that common law rights in the mark are asserted in the acronym "TEA." Because of misdirected email to other domains Complain ant sought to additionally register TEAINC.COM on November 10, 1999. On that date, Network Solutions issued Complainant a tracking number for the domain name application. On November 15, 1999, Complainant was advised by email from Network Solutions that R espondent had been awarded registration of the domain.

Acknowledged communications between the parties establish that Respondent (aware of Complainant’s existence due to misdirected mail to its newly acquired site) made several offers to sell the domain at issue to Complainant for many thousands of dollars . Respondent also offered the domain for sale to the highest bidder at a site linked to www.teainc.com. Complainant contends that Respondent’s willingness to sell so quickly and for such a high price is evidence of bad faith. Under the circumstances, we disagree.

We can only speculate why Complainant apparently made no effort, or no successful effort, to obtain U.S. Patent and Trademark registration of its acronym, "TEA." We find it to be as generic and descriptive as "COFFEE" and thus not protectable as a mark in this proceeding, absent a showing of acquisition of secondary meaning in the mind of the public. Complainant has made no effort at such a showing.

We find from the undisputed allegations of Respondent that Respondent had a significant historical and economic interest in the marketing and sale of beverage variety tea over the Internet prior to its registration of the domain name at issue. Responde nt’s offer to sell its appropriately obtained domain, TEAINC.COM, to Complainant, following the mutual email confusion since registration, does not constitute bad fai th under circumstances in which Respondent had superior rights in the domain. The amount of the demand for transfer in this situation is irrelevant.

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 Panel finds that the domain name "TEAINC.COM" is identical or confusingly similar to the acronym by which Complainant describes itself. However, we find the name generic and descriptive. In light of the failure of Complainant to offer any proof of a secondary association in the mind of the public of the acronym with the full name of the Complainant or any evidence of attempted or actual registration of the mark, "TEA," we find the mark to be weak, at best, and not entitled to priority over Resp ondent’s right to use "TEA" as tea in the sale of its products at www.teainc.com. Such a generic mark does not satisfy the requirements of 4(a.)(i) of the Policy, because Complainant has no protectable rights in a generic mark. Interactive Television C orp. v. Noname.com, D2000-0355 (WIPO June 26, 2000) (finding that the generic mark in question did not satisfy Policy 4(a)).

We find that Respondent has established ample rights and legitimate interests in the domain name at issue, which serves to generically describe the products for sale on the web site.

We find that there is no evidence that Respondent acted in bad faith by offering to sell the domain name at issue for valuable consideration in excess of out-of-pocket costs directly related to the domain name. Under the circumstances noted above b y this Panel, Respondent was and is entitled to sell the domain name for whatever price it wishes.

By virtue of the fact that Complainant has failed to establish any one of the three elements required by ICANN Policy Rule 4(a), it is the decision of the panel that the requested relief be denied.

Hon. James A. Carmody, Arbitrator, Chairman

Hon. John Upchurch, Arbitrator

Hon. M. Kelly Tillery, Arbitrator