Generic Top Level Domain Name (gTLD) Decisions

The Complainant is Pacific Investment Management Company LLC , Newport Beach, CA, USA ("Complainant"). The Respondent is Alex Szabo, Weston, CT, USA ("Respondent").

The domain name at issue is "stocksplus.com" registered with Network Solutions.

The 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. James A. Carmody, as Panelist.

Complainant submitted a Complaint to the National Arbitration Forum ("the Forum") electronically on September 15, 2000; The Forum received a hard copy of the Complaint on September 15, 2000.

On 9/19/00, Network Solutions confirmed by e-mail to the Forum that the domain name "stocksplus.com" is registered with Network Solutions and that the Respondent is the current registrant of the name. Network Solutions has verified that Respondent is bound by the Network Solutions 5.0 registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s UDRP.

On September 19, 2000, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of October 9, 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@stocksplus.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 October 16, 2000, pursuant to Complainant’s request to have the dispute decided by a One Member panel, the Forum appointed the Hon. James A. Carmody 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 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 Forum’s Supplemental Rules and any rules and principles of law that the panel deems applicable, without 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

Because the domain name "stockplus.com" is identical to the trademark in which the Complainant has rights, the Respondent has no rights or legitimate interests in respect of the domain name, and the Respondent’s engaged in bad faith activity.

B. Respondent

The Respondent has neglected to respond to the contentions addressed in the Complaint. The Panel decides this proceeding on the basis of the Complaint (Rules, para. 14.a), and reasonable factual conclusions will be drawn by the Panel on the basis of Complainant’s undisputed representations (Rules, para. 15.a).

The Complainant is a national leader in the field of stock and band funds. Since 1986 the Complainant has continuously used the service mark STOCKPLUS in conjunction with management and investment services. The STOCKPLUS mark was registered with the U.S. Patent and Trademark Office on February 2, 1988 (No. 1475267). The STOCKPLUS mark is well known throughout the financial community, and consumers associate the mark with the Complainant’s services. The STOCKPLUS mark is suggestive of the services provided by the Complainant under the mark. Thus, as a suggestive service mark, the mark is deserving of greater protection than a descriptive mark. See Abercrombie & Fitch Co. v. Hunting World, Inc., [1976] USCA2 141; 537 F.2d 4,9 (2d Cir. 1976) (identifying different categories of trademarks).

There is currently no active website associated with the domain name at issue. Prior versions of the site offered the domain name for sale at minimum bid of $45,000. The domain name was also offered for sale at several auction sites.

On August 25, 2000, the Complainant informed the Respondent via email of its rights in the STOCKPLUS mark. The Respondent replied that the domain name "must be purchased from him" and offered to sell the domain name to the Complainant for $95,000. The Respondent noted that bidding for the domain name could exceed over $250,000 and claimed to have "several well known large U.S. companies" interested in purchasing the domain.

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 domain name is identical to the Complainant’s STOCKPLUS mark. See Symplicity Corp. v. Gately, D2000-0425 (WIPO July 12, 2000) (finding that the domain name at issue <symplicity.com> is identical to the mark in which the Complainant has common law rights acquired through use and for which Complainant has applied for registration with the United States Patent and Trademark Office).

The Complainant contends that the Respondent has no legitimate interest in the domain name. The Respondent has not denied this allegation. Because the Respondent has made no use of the website, the Respondent cannot contend that he is using it in connection with a bona fide offering of goods and services or for a legitimate noncommercial purpose. Policy ¶ 4.c.(i), (iii). The Respondent has also not contended that he is making demonstrable preparations to use the domain name, which is also a method of proving rights and legitimate interests in the domain name. Policy ¶ 4.c.(i). The Respondent has also not contended that it is commonly known by the STOCKPLUS phrase. Policy ¶ 4.c.(ii). See BIC Deutschland GmbH & Co. KG v. Tweed, D2000-0418 (WIPO June 20, 2000) ("By not submitting a response, Respondent has failed to invoke any circumstance which could demonstrate, pursuant to ¶ 4(c) of the Policy, any rights or legitimate interests in the domain name").

On the above findings, the Panel concludes that the Respondent has no rights or legitimate interests in the domain name at issue. Policy ¶ 4.a.(ii).

The Complainant contends that the Respondent’s registration of the domain name constitutes bad faith pursuant to UDRP ¶ 4.b.

There is currently no active website associated with the domain name at issue. The Respondent’s passive holding of the domain name is evidence of bad faith registration and use. See Telstra v. Nuclear Marshmallows, D2000-0003 (WIPO Feb. 18, 2000).

Prior versions of the website indicated that the website was for sale. The domain name was also offered for sale on several auction sites for a minimum bid of $45,000. The Respondent also indicated in communication with the Complainant that he would sell the domain name to the Complainant for $95,000 or to the highest bidder. This is evidence that the Respondent registered the domain name for the purpose of selling it for valuable consideration in excess of out of pocket costs associated with the domain name. Policy ¶ 4.b.(i). See America Online, Inc. v. Netsbest, FA 93563 (Nat. Arb. Forum Mar. 29, 2000) (finding bad faith where the Respondent made no use of the domain name <icqguide.com> other than offering it for sale for $99,000). This is evidence of bad faith use and registration. Thus, the Panel concludes that the Complainant has proven the elements of Policy ¶ 4.a.(iii).

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