Generic Top Level Domain Name (gTLD) Decisions

The Complainant is Zvi N Raskin Schick Technologies, Inc., Long Island, NY, USA ("Complainant") represented by Zvi N Raskin, Schick Technologies, Inc. The Respondent is Russel Raddatz Eagles Nest, West Columbia, SC, USA ("Respondent").

The domain name at issue is "accudexa.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.

Louis E. Condon as Panelist.

Complainant submitted a Complaint to the National Arbitration Forum ("the Forum") electronically on October 3, 2000; The Forum received a hard copy of the Complaint on October 6, 2000.

On October 4, 2000, Network Solutions confirmed by e-mail to the Forum that the domain name "accudexa.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 4.0 registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANNís UDRP.

On October 12, 2000, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of Novemeber 1, 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 Respondentís registration as technical, administrative and billing contacts, and to postmaster@accudexa.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 November 6, 2000, pursuant to Complainantís request to have the dispute decided by a One Member panel, the Forum appointed Louis E. Condon 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 Forumís 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

B. Respondent

The Respondent has not provided the Panel with a response to the allegations set forth in the Complaint. As such, in deciding this proceeding, reasonable assertions will be made based solely on the Complaint.

Complainant manufactures and sells digital x-ray devices, including accuDEXA, for the medical and dental markets. The Complaint is based upon the Complainantís registered trademark, "ACCUDEXA", the name of the Complainantís electronic digital imaging system used by physicians to access bone-mineral-density (filed 04/21/97; registered 03/02/99; No. 2,229, 546).

Panel believes that the Respondent is an entity administered by Russell Raddatz. Mr. Raddatz was at one time, the manager of a company which sold the Complainantís accuDEXA machine. The business relationship ended with a lawsuit between the Complainant and Respondent which settled in March of 1999.

Respondent registered the domain name while the two parties were embroiled in litigation. Respondent's domain name, "accudexa.com", does not link to any website or web page.

On August 31, 2000, Complainant's Counsel faxed and sent by overnight courier a letter to the Respondent, to the attention of Mr. Raddatz, requesting the transfer of the trademark domain name to Complainant. Mr. Raddatz did not respond.

On September 25, 2000, Complainant's Counsel contacted Mr. Raddatz by telephone. Mr. Raddatz inquired as to how much money the Complainant would be willing to pay for the transfer of the domain name. The conversation ended when the Complainant offered only to pay registration fees associated with the time remaining on the domain name registration.

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.

Complainant has rights in the distinctive mark "ACCUDEXA." The Patent and Trademark Office does not distinguish between upper and lower case letters. Also, Internet domain names are not capable of distinguishing between lower and upper case letters. As such, the Panel concludes that the domain name and the Complainantís mark are identical. See CBS Radio Inc. v. Oldies Radio, D2000-1033 (WIPO Oct 5, 2000) (finding the domain name <wgrr.com> and the Complainantís mark WGRR identical).

Based on the evidence submitted by the Complainant, the Panel makes the following findings regarding illegitimacy.

The Respondent has yet to provide any basis that would legitimize any claim it has to the contested domain name in connection with any goods or services which it might be providing. In fact, it is extremely unlikely that Respondent can even make such a claim. The Respondent has yet to link the domain name to an active website for commercial or non-commercial uses. Therefore, Policy � 4.c.(i) and (iii) cannot be established. Further, any claims that the Respondent is commonly known by the mark "ACCUDEXA" are tenuous at best. The Respondent was merely an employee of a company that sold the Complainantís products. Therefore, the Panel concludes that none of the circumstances set forth in � 4.c. of the Policy is applicable. See BAA plc v. Spektrum Media Inc., D2000-1179 (WIPO Oct. 17, 2000) (finding that the Respondent has no rights or legitimate interests in the domain name at issue where the Respondent failed to respond).

The Respondent has not linked the domain name to an active website. In certain circumstances, passive holding of a domain name is evidence of bad faith registration and use of a domain name. See Telstra Corp. v. Nuclear Marshmallows, D2000-0003 (WIPO Feb. 18, 2000) ("[I]t is possible, in certain circumstances, for inactivity by the Respondent to amount to the domain name being used in bad faith"). In addition, the Respondent has offered no evidence of a good faith intent to use the domain name for a legitimate purpose. See Hewlett-Packard Company v. Greg Martineau, FA 95359 (Nat. Arb. Forum Aug. 30, 2000) (finding that the Respondentís failure to submit an assertion of good faith intent to use the domain name, in addition to the passive holding of the domain name, reveal that the Respondent registered and uses the domain name in bad faith). Considering the past conflicts between the Respondent and Complainant and the lack of assertion of any "good faith" purpose, the Panel can only conclude that the Respondent registered the domain name as a tactic to retaliate against the Complainant. Therefore, the Complainant finds that the Respondent registered and used the domain name in bad faith.

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 "accudexa.com" be transferred from the Respondent to the Complainant.