Generic Top Level Domain Name (gTLD) Decisions

World Intellectual Property Organization

WIPO Arbitration and Mediation Center

Dial-A-Mattress Operating Corp., with its principal place of business in Long Island City, New York, USA, commenced this administrative proceeding pursuant to the Uniform Domain Name Dispute Resolution Policy (the "Policy") and the associated Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") adopted by the Internet Corporation for Assigned Names and Numbers ("ICANN"). The Respondent is identified as S. Chin whose contract address is 428 Third Avenue, Suite 2, New York, New York 10016, USA.

Respondent has entered into an Internet domain name service agreement dated January 20, 1999, with Network Solutions, Inc. ("NSI"). NSI is both a registry and, in this case, a registrar located at 747 Third Avenue, New York, New York and at 505 Huntmar Park Drive, Herndon, Virginia. The Respondent’s contract with NSI provides, among other things, that Internet message traffic addressed to the domain name 1800mattress.com be routed to computers specified by Respondent. The disputed domain name in this case is, thus, 1800mattress.com maintained by NSI in its capacity as registrar.

Complainant filed a Complaint with the World Intellectual Property Organization Arbitration and Mediation Center (the "Center") on or about September 18, 2000. The Center notified the Respondent of the filing of the Complaint on October 9, 2000. The Respondent served no timely answer or other response to the Complaint. The Center notified Respondent on or about October 30, 2000 that he was in default and that the dispute would be assigned to a single-member Administrative Panel in accordance with the UDRP Rules. The Center further notified Respondent that the Panel would decide, in its discretion, whether to consider any untimely response submitted by Respondent, and that Respondent would continue to receive all case-related communications at the address designated by him in his domain name service agreement with NSI. As of December 11, 2000, the Panel had received no communication from Respondent controverting any of the allegations made against him by the Complainant.

The Complainant is the record owner of U.S. Reg. No. 1,728,356 for the service mark "1-800-MATTRES, AND LEAVE OFF THE LAST S THAT’S THE S FOR SAVINGS." Complainant further alleges that it uses the fictitious business name "1-800-MATTRESS" in various cities including New York, the place of Respondent’s address of record with NSI.

As noted above, the Respondent has submitted no response to the Complaint and has not identified himself or any business operated by him, whether associated with the disputed domain name or otherwise.

A. Complainant

Complainant contends that the disputed domain name is confusingly similar to its registered service mark and trading name, 1-800-MATTRESS. Complainant further contends that Respondent has no rights or legitimate interests in respect of the domain name. Finally, Complainant contends that Respondent obtained and has used the disputed domain name in bad faith.

B. Respondent

Respondent has submitted no answer or other response to the Complaint.

Section 4(a) of the Policy entitles a Complainant to seek an administrative transfer of the second level Internet domain name in the event that it "proves" to the satisfaction of the Panel, three predicates: (1) an accused domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; (2) a registrant has no rights or legitimate interests in respect of the accused domain name; and (3) a registrant’s domain name has been registered and is being used in bad faith. A fact is "proved" for purposes of Policy when it is "more likely than not to be true based on the evidence." Madonna Ciccone, p/k/a Madonna v. Dan Parisi, Case No. D2000-0847.

In the present case, the Complaint pleads facts which, if proved, would entitle the Complainant to relief under the UDRP. The Complainant has submitted evidence in support of its Complaint; where, as here, a Respondent has served no response to a well-pleaded complaint, all allegations of fact pertinent to liability are deemed admitted. That being so, the Complainant, having pleaded facts entitling it to the requested relief, is entitled to a ruling in its favor.

I find in favor of the Complainant. The Respondent has effectively admitted that the disputed domain name is confusingly similar to a service mark in which Complainant has rights; that Respondent lacks rights or legitimate interest in the disputed domain name; and the disputed domain name was registered and used in bad faith. I therefore decide that the disputed domain name, 1800mattress.com, should be transferred to the Complainant.

James W. Dabney
Sole Panelist