Generic Top Level Domain Name (gTLD) Decisions

The Complainant is TrackTime, Inc., Youngstown, OH, USA ("Complainant"). The Respondent is The Web People, Columbus, OH, USA ("Respondent").

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

On November 29, 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 October 25, 2000; The Forum received a hard copy of the Complaint on October 27, 2000.

On October 27, 2000, Network Solutions confirmed by e-mail to the Forum that the domain name tracktime.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 November 2, 2000, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of November 22, 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@tracktime.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(s) be transferred from the Respondent to the Complainant.

A. Complainant

B. Respondent

Respondent did not submit a response in this matter.

Complainant, TrackTime, Inc., provides driving and racetrack driving schools to the general public and private companies for all types of motorized vehicles. Respondent was, at all pertinent times engaged in web site hosting services. In 1998, Respondent registered the domain name at issue at Complainant’s request and for approximately two years hosted a web site as an agent of Complainant using the tracktime.com domain name.

As part of a web hosting agreement between the parties, Respondent registered the domain name tracktime.com on Complainant’s behalf. In September 2000, Respondent agreed to transfer the registration of the domain name to Complainant in exchange for $2,500. This agreement is evidenced by a written confirmation signed by Respondent. Complainant issued a check for $2,500 to Respondent as consideration for the transfer of the registration of the timetrack.com domain name, which Respondent cashed. However, Respondent has failed to transfer the registration of the domain name to Complainant and has subsequently moved is place of business, leaving no forwarding address. Various web sites hosted by Respondent, including Complainant’s web site are now not operational.

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 at issue, tracktime.com is confusingly similar to a mark in which Complainant has rights. Complainant has been doing business as TrackTime Inc. since 1982 and has thereby acquired sufficient rights in TRACKTIME to sustain a claim under the ICANN Policy. See e.g. Fishtech v. Rossiter, FA 92976 (Nat. Arb. Forum Mar. 10, 2000) (finding that the Complainant has common law rights in the mark "fishtech" which it has used since 1982). See also McCarthy on Trademarks and Unfair Competition, § 25:74.2, Vol. 4 (2000) (recognizing that the ICANN Policy is broad in scope and that common law rights will suffice to maintain an action under the UDRP).

The domain name at issue, tracktime.com, is confusingly similar to Complainant’s TRACKTIME mark and TrackTime Inc. trade name, as the addition ‘.com’ is insignificant. See e.g. Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as "net" or "com" does not affect the domain name for the purpose of determining whether it is identical or confusingly similar).

Therefore, this panel concludes that the first ICANN Policy element has been satisfied; tracktime.com is confusingly similar to Complainant’s TRACKTIME mark.

Respondent has no rights or legitimate interest in tracktime.com. The ICANN Rules provide that in the absence of exceptional circumstances, if a Respondent does not submit a response, the Panel shall decide the dispute based upon the complaint. ICANN Rules 5(e).

Further, the ICANN Rules provide that:

Finally, it must be noted that the Respondent bears the burden of proof on the issue of its asserted rights or legitimate interest. Complainant has alleged that Respondent has no rights or legitimate interest in the domain name. Respondent has not provided any evidence to contradict Complainant’s allegations.

The evidence indicates that whatever interest Respondent had in tracktime.com was as an agent of Complainant. Once Respondent agreed to transfer the domain name to Complainant and accepted Complainants payment therefor, Respondent’s agency relationship was, in their respect, extinguished.

Therefore, this panel concludes that the second ICANN Policy element has been satisfied; Respondent has no rights or legitimate interest in tracktime.com.

The evidence indicates that the domain name was registered and is being used in bad faith. Clearly, Respondent is using the domain name in bad faith. Respondent agreed to transfer the registration to Complainant in exchange for $2,500. Respondent accepted Complainant’s payment yet refuses to transfer the registration. Subsequently, Respondent has essentially disappeared with Complainant’s money. Such conduct is the epitome of use in bad faith. Respondent is not only attempting to exact commercial gain from Complainant by offering to sell, rent or transfer a domain name, Respondent has received payment. See Cruzeiro Licenciamentos Ltda v. Sallen and Sallen Enterprises, D2000-0715 (WIPO Sept. 6, 2000) (finding that mere passive holding of a domain name can qualify as bad faith if the domain name owner’s conduct creates the impression that the name is for sale).

The more difficult question is when Respondent’s bad faith began. Respondent’s only interest in the registration was and is as agent of Complainant. Respondet did not respond to the assertion that the registration was done in bad faith. In light of the evidence presented, this panel finds that Respondent acted in bad faith at all relevant points. Evidence of bad faith is not limited to the circumstances listed in the ICANN Policy. See Twentieth Century Fox Film Corp. v. Risser, FA 93761 (Nat. Arb. Forum May 18, 2000) (finding that in determining if a domain name has been registered in bad faith, the Panel must look at the "totality of circumstances").

Here, the circumstances indicate that Respondent has maintained registration of the domain name after agreeing to transfer it and even after receiving consideration for its transfer. Perhaps more tellingly, Respondent has failed to respond and disappeared. Such conduct amounts to an "admission-by-silence" of bad faith intent. See Cigna Corp. v. JIT Consulting, AF-00174 (eResolution, June 6, 2000).

The ICANN Policy was designed in part to protect rightful trademark owners from the bad faith actions of cybersquatters who acquire domain names and attempt to exact commercial gain in exchange for transfer of the domain name. Respondent has gone one step further. It has used a business relationship acquire a domain name, actually obtained payment of $2,500 under the guise of a promise to transfer the domain name, and then refused to transfer the domain name.

Such actions, without rebuttal by Respondent, indicate to this panel sufficient bad faith to warrant transfer of the domain name.

Accordingly, in light of the evidence presented, this Panel finds that the domain name tracktime.com shall be transferred from Respondent to Complainant.