Generic Top Level Domain Name (gTLD) Decisions

The Complainant is The Gary's Group, LLC , Van Nuys, CA, USA ("Complainant"). The Respondent is Joe Moran, Tarzana, CA, USA ("Respondent").

The domain names at issue are garystuxshop.com and garystuxshop.net, registered with Network Solutions.

The undersigned 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.

Henry W. Blizzard Jr., Retired Circuit Judge as Panelist.

Complainant submitted a Complaint to the National Arbitration Forum ("The Forum") electronically on September 26, 2000; The Forum received a hard copy of the Complaint on September 26, 2000.

On September 27, 2000, Network Solutions confirmed by e-mail to The Forum that the domain names garystuxshop.com and garystuxshop.net are 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 October 2, 2000, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of October 23, 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@garystuxshop.com, and postmaster@garystuxshop.net by e-mail.

On October 26,2000 pursuant to Complainant’s request to have the dispute decided by a One Member panel, the Forum appointed Henry W. Blizzard Retired Judge,as Panelist.

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

A. Complainant

Complainant is the operator of a chain of tuxedo shops and also sells through its web site "garystuxshops.com". Complainant is the registered owner of the trademark "Gary’s Tux Shops". It alleges the domain names in question are identical or confusingly similar to his domain name and his trademark. It is further alleged that the Respondent has no right or legitimate interest in the domain names in question. It further alleges that the Respondent is in direct competition with Complainant. Complainant alleges that the registration of the domain names in question was for the purpose of disrupting the business of Complainant by diverting certain persons to Respondent’s web site which would occur if a person attempting to type in Complainant’s web site on the internet should leave off the last "s", which would result though a linkage to Respondent web site and the potential customer being shown Respondent’s web site.

Respondent admits that the web site he owns is identical or confusingly similar to the domain name and business name of the Complainant. Respondent further admits that he has no rights to or legitimate interest in the domain names. Respondent further admits the linkage of his web site to the domain names in question. He asserts that an associate, and not Respondent linked the domain names in question and that he didn’t know of this condition until notified by Complainant.

The domain names in question are identical or confusingly similar to the Complainant’s domain names and registered trademark. Respondent does not have any rights or legitimate interest in the domain names in question. The registration and linkage of the domain names in question to the Respondent’s web site was done for the purpose of disrupting the business of Complainant, who was a competitor. This disruption was designed to occur when persons seeking the Complainant’s web site would unknowingly leave off a letter "s" and would reach the web site of the Respondent. This registration and linking was done by an agent, who acted within the line and scope of his authority as an employee of the Respondent.

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.

Respondent admits that the domain names in question are identical or confusingly similar to that of the Complainant’s. They are worded the same except that of Complainant has an "s" after the word "shop"

The Respondent demonstrates no rights or legitimate interest in the domain names in question and disavows that he has any such rights or interest.

The registration and linking of the domain names in question to Respondent’s web site was done for the purpose of disrupting the business of a competitor. See Puckett, Individually and d/b/a Nature’s Window v. Miller D2000-0297 (WIPO June 12,2000). Although Respondent claims that he did not register or link the domain names in question to his competing business, these actions were done by Respondent’s associate and legally are the act of Respondent. The associate was an agent, who acted within the line and scope of his authority, bestowed on him by the Respondent and thus are attributed to the Respondent. Under the facts, the acts of the agent are in effect the acts of the principle that are the acts of the Respondent.

Based upon the findings and discussion and pursuant to Rule 4 of the ICANN Uniform Domain name Dispute Resolution Policy, it is decided as follows:

The relief requested by the complainant is granted. The undersigned directs that the Domain Names garystuxshop.com and garystuxshop.net, registered to Joe Moran be transferred to Complainant, The Gary’s Group, LLC Van Nuys, California, USA.