Generic Top Level Domain Name (gTLD) Decisions

The Complainant is Buzzer, Inc. , New York, NY, USA ("Complainant") represented by Mark S. Kaufman, The Law Offices of Mark Kaufman. The Respondent is Refract LLC, London, UK ("Respondent").

The domain name at issue is "buzzer.com", registered with Tucows.

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

Complainant submitted a Complaint to the National Arbitration Forum ("The Forum") electronically on November 13, 2000. The Forum received a hard copy of the Complaint on November 16, 2000.

On November 20, 2000, Tucows confirmed by e-mail to The Forum that the domain name "buzzer.com" is registered with Tucows and that the Respondent is the current registrant of the name. Tucows has verified that Respondent is bound by the Tucows registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANNís UDRP.

On November 27, 2000, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of December 18, 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@buzzer.com by e-mail.

On December 21 2000, pursuant to Complainantís request to have the dispute decided by a One Member panel, the Forum appointed Henry W. Blizzard Jr., as Panelist.

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

Complainant alleges that it has been using the mark "BUZZER" since May 1, 1999, for its business services, designing and implementing web sites. Complainant has filed an application regarding this name with the U. S. Patent and Trademark Office. The domain name in question is alleged to be virtually identical to Complainantís mark, "BUZZER". Further, Complainant contends that Respondent does not use, nor has it ever used the domain name for a legitimate purpose or made any fair use of the name. The name has only been used to direct to other web sites. Complainant alleges Respondent has no right or legitimate interest to the domain name in question because Respondent is not known by that name nor has he used the domain name in connection with any purpose whatsoever. Complainant contends that Respondent acted in bad faith in that the name was registered primarily for the purpose of selling, renting or otherwise transferring the domain name to Complainant, the owner of the mark, for a valuable consideration in excess of Respondentís documented out of pocket costs directly related to the domain name, and through its statements to Complainant such intent can be implied. Complainant contends that Respondentís actions show a pattern of such conduct.

Respondent neither confirms nor denies that the domain name in question is identical to the Complainantís mark and says that it lacks knowledge or information sufficient to believe that the Complainant owns the trade name or service mark "BUZZER". Respondent contends it has rights or a legitimate interest in the domain name in question because it is developing it as a portal sight. It contends that it has not acted in bad faith since Complainant initiated the contact between the parties. Respondent stated it was unaware of Complainants existence prior to registration of what it terms a generic word "BUZZER". Respondent alleges that the offer to sell a generic word cannot be an act of bad faith and that none of its actions have been in bad faith.

The domain name in question is confusingly similar to the mark or trade name used by Complainant in its business. Respondent has no legitimate interest or rights to the domain name in question. The registration by the Respondent of the domain name in question was done in bad faith in that it was for an improper use, namely to sell, rent or otherwise transfer the registration to the Complainant for a valuable consideration above the actual expenses incurred by Respondent. Respondent is not currently using the domain name in question.

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 canceled or transferred:

(3) the domain name has been registered and is being used in bad faith.

The spelling of the domain name in question is identical to the spelling of the Complainantís pending mark "BUZZER" with, of course, addition of the ".com". The likelihood of confusion is thus self evident. See Phone-N-Phone Services (Bermuda) Ltd. V. Shlomi (Salomon) Levi, D2000-0040(WIPO Mar. 23,2000)

Respondent is not known by the domain name nor makes any use of the name, and therefore Respondent has no rights or legitimate interest to the domain name in question. Respondent shows no legitimate noncommercial or fair use without intent for commercial gain. See Hartford Fire Ins. Co. v Webdeal.com, Inc., FA 95162 (Nat. Arb. Forum Aug 29, 2000).

The statements made by the Respondent demonstrate an attempt to sell the domain name in question for a sum in excess of the actual out-of-pocket expenses expended by Respondent in Registering the domain name. This shows that the Registration was made for the purpose of selling, renting, or otherwise transferring the name for such a consideration, that is in excess of the actual costs. This type of registration is not for a legitimate purpose and is an act of bad faith. See Dynojet Research Inc. v Norman,

Based upon the findings and discussion and pursuant to Rule 4(a) of the ICANN Uniform Domain Name Dispute Policy, it is decided as follows: the relief requested by Complainant is granted. The undersigned directs that the domain name "buzzer.com" registered to Refract LLC, London, U. K., be transferred to Complainant, BUZZER,INC. New York, N.Y. USA