Generic Top Level Domain Name (gTLD) Decisions

The Complainant is Harry and David , Medford, OR, USA ("Complainant") represented by James E. Geringer, Klarquist, Sparkman, Campbell Leigh & Whinston. The Respondent is Personal ("Respondent").

The domain name at issue is harryanddavids.com registered with Bulkregister.

On October 26,2000, pursuant to Complainant’s request to have the dispute decided by a One Member panel, the Forum appointed James P. Buchele as Panelist. The Panelist certifies that he has acted independently and impartially and to the best of his 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 September 28, 2000; The Forum received a hard copy of the Complaint on September 29, 2000.

On September 29, 2000, Bulkregister confirmed by e-mail to the Forum that the domain name harryanddavids.com is registered with Bulkregister and that the Respondent is the current registrant of the name. Bulkregister has verified that Respondent is bound by the Bulkregister registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s UDRP.

On September 29, 2000, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of October 20, 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@harryanddavids.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.

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

Complainant asserts the following:

B. Respondent

Respondent did not submit a response or assert any rights in this proceeding.

Complainant, Harry and David, has been in business for over sixty years and holds at least four U.S. trademark registrations, one Canadian trademark registration and three Japanese trademark registrations for HARRY AND DAVID in association with its goods and services. Respondent "Personal" provided no information about itself or its business, other than the information required to register the domain name harryanddavids.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 evidence submitted indicates that the domain name harryanddavids.com is confusingly similar, if not virtually identical to Complainant’s numerous trademark registrations. Therefore, this panel concludes that Complainant has satisfied both parts of the first ICANN Policy element. First, the Complainant has rights in a trademark or service mark. Second, the domain name is identical or confusingly similar to such trademark.

Complainant alleged that Respondent does not have any rights or legitimate interest in a domain name that is comprised of Complainant’s trademark. Respondent bears the burden of proof on this issue, and is given the opportunity, under the ICANN Policy demonstrate its rights or legitimate interest in the domain name. See ICANN Policy ¶ 4(c).

Because Respondent has failed to respond, he has failed to demonstrate any rights or legitimate interest in the domain name.

When a federally registered trademark, such as HARRY AND DAVID is incorporated into a domain name such as harryanddavids.com, one of two conclusions must be reached. Either the corresponding web site is associated with the incorporated trademark, or the web site creator wants to trade off the goodwill associated with the trademark. See Dr. Karl Albrecht v. Eric Natale FA 95465 (Nat. Arb. Forum Sept. 16, 2000) ("The Respondent intentionally registered a domain name which uses the Complainant’s name. There is no reasonable possibility that the domain name karlalbrecht.com was selected at random").

Here, Respondent is using the harryanddavids.com domain name to attract Internet users to various web sites in violation of ICANN Policy ¶ 4(b)(iv). Visitors to harryanddavids.com are redirected to one of two web sites. One web site offers free credit in an on-line casino. See Encyclopaedia Britannica Inc. v Shedon.com, D2000-0753 (WIPO Sept. 6, 2000) (finding that the Respondent violated Policy ¶ 4.b.(iv) by using the domain name <britannnica.com> to hyperlink to a gambling site).

The other web site contains a business directory, which includes companies that compete with Complainant’s business. See Southern Exposure v. Southern Exposure, Inc., FA 94864 (Nat. Arb. Forum July 21, 2000) (finding Respondent acted in bad faith by attracting Internet users to website that competes with Complainant’s business).

Having established all three elements required by the ICANN Policy, it is the decision of this panel that the requested relief be granted.

Accordingly, it is ordered that the domain name harryanddavids.com be transferred from the Respondent to the Complainant.