P. O. Box 50191
Minneapolis, Minnesota 55405 USA
________________________________________________
Northwest Plumbing Drain Station, Inc.
1459 E. 9 Mile
Ferndale, MI 48220,
COMPLAINANT,
vs.
Sumner Plumbing
4535 Delemere
Royal Oak, MI 48073
RESPONDENT.
DECISION
Forum File No.: FA 0002000094197
___________________________________________________
The above entitled matter came on for an administrative
hearing on April 3, 2000, before the undersigned on the Complaint
of
Northwest Plumbing Drain Station, Inc., hereafter "Complainant", against
Sumner Plumbing, hereafter "Respondent".
The parties appear in this
proceeding pro se.
PROCEDURAL FINDINGS
Domain Name: Northwestplumbing.com and Drainstation.com
Domain Name Registrar: Network Solutions, Inc.
Domain Name Registrant: Sumner Plumbing
Date of Domain Name Registration: December 26, 1997
Date Complaint Filed: February 22, 2000
Date of Commencement of Administrative Proceeding
in Accordance with Rule 2(a) and Rule 4(c): February 28, 2000.
Due date for a Response: March 20, 2000.
After reviewing the Complaint, and determining it
to be in administrative compliance, the National Arbitration Forum
(The
Forum) forwarded the Complaint to the Respondent on February 28, 2000
in compliance with Rule 2(a), and
the administrative proceeding was
commenced pursuant to Rule 4(c). In compliance with Rule 4(d), The Forum
immediately notified Network Solutions, Inc. (Network Solutions), the
Internet Corporation for Assigned Names and Numbers
(ICANN), and the
Complainant that the administrative proceeding had commenced. The Respondent
responded to
The Forum by letters dated March 16, 2000 and March 28,
2000 pursuant to Rule 5(a).
On December 26, 1997, Respondent registered the domain
names "Northwestplumbing.com" and "Drainstation.com" with Network
Solutions,
the entity that is the Registrar of the domain name. On February 22,
2000, Network Solutions verified
that Respondent is the Registrant for
the domain names "Northwestplumbing.com" and "Drainstation.com", and
that further by registering its domain name with Network Solutions,
Respondent agreed to resolve any dispute regarding
its domain name through
ICANN's Rules for Uniform Domain Name Dispute Resolution Policy, and
the Uniform Domain
Name Dispute Resolution Policy.
FINDINGS AND CONCLUSIONS
- The Complainant is a corporation engaged in the plumbing business.
The record in this case does not reveal when the
corporation was
formed or when the business name of Northwest Plumbing Drain Station,
Inc. was
first used. Complainant's business address is Ferndale,
Michigan. Johnny Lococo owns the Complainant corporation.
- The Respondent is a plumbing business operated by Gary Sumner.
Sumner has been engaged in the plumbing business under
the business
name of Sumner Plumbing at least since 1985. Respondent's business
address is Royal
Oak, Michigan.
- Ronald Steven Sumner brother of Respondent Gary Sumner operated
a plumbing business under the name of Northwest Plumbing
in 1993.
- Sometime in 1993 or 1994, Ronald Sumner associated himself with
Johnny Lococo in his plumbing business. They subsequently
registered
the DBA name "Northwest Plumbing" in their joint names.
-
Ronald Sumner eventually became inactive in Northwest
Plumbing. Sometime in 1996, Lococo terminated Sumner's Master
Plumber License with the business and has solely operated Northwest
Plumbing as his own company
since that time.
-
When the Northwest Plumbing DBA expired in 1999,
Lococo registered Northwest Plumbing in his own name.
-
In 1984, Gary Sumner was the registered DBA owner
of the business name. "The Drain Station". The record does not
reveal when he obtained the DBA rights to that name under Michigan
law, but he did not renew the
DBA registration when it expired.
In 1993, Johnny Lococo registered "The Drain Station" in his own
name.
-
Respondent Gary Sumner states that in 1985, he
"owned and operated a company called 'The Drain Station'" and
that he had advertised using the name "The Drain Station" "while
Mr. Lococo and his father were driving
an ice cream truck". Mr.
Lococo states he drove an ice cream truck in 1978, and that his
father
died in 1984. Respondent has furnished no other evidence
of the use of the name "The Drain Station" in his business.
-
Respondent Gary Sumner states that he and his
brother Ronald Sumner "had every intention of using the names
'Northwest Plumbing' and 'The Drain Station'". Mr. Donald Ward,
General Manager of Sumner Plumbing states
that Gary Sumner "had
every intention of using" "The Drain Station" name. "intent"
to use a business
name is inferior to the actual use of a business
name when establishing priority to a particular name.
-
The Respondent registered the domain names "Northwestplumbing.com"
and "Drainstation.com" in bad faith and has no
rights or legitimate
interests in respect to said domain names. The following is evidence
of bad
faith:
-
At the time Respondent Gary Sumner registered
the domain names "Northwestplumbing.com" and "Drainstation.com"
on December 26, 1997, his competitor, Johnny Lococo, was actively
engaged in a plumbing
business called Northwest Plumbing Drain
Station in the same geographical area.
-
At the time Respondent Gary Sumner registered
the domain name "Northwestplumbing.com" and "Drainstation.com",
he was making no current business use of those names.
-
At the time Gary Sumner registered the domain
names "Northwestplumbing.com" and "Drainstation.com", Johnny
Lococo had registered the right to use these business names
under the DBA laws of the State
of Michigan.
-
That Respondent Gary Sumner registered the
domain names primarily for the purpose of disrupting the business
of his competitor Northwest Plumbing Drain Station, Inc.,
the Complainant herein.
-
The Complainant's prayer for relief requests that
the domain names "Northwestplumbing.com" and "Drainstation.com"
be transferred from Respondent to Complainant.
DECISION
The undersigned certifies that he has acted independently
and has no known conflict of interest to serve as the Arbitrator
in
this proceeding. Having been duly selected, and being neutral, the undersigned
makes the following DECISION:
- Based upon the foregoing Findings and Conclusions, I find the
domain names registered by the Respondent are nearly
identical
or confusingly similar to the business name of the Complainant;
that Respondent has no
legitimate interest with respect to the
domain names of "Northwestplumbing.com" and "Drainstation.com";
that Respondent registered the domain names in bad faith for the
primary purpose of disrupting the business
of a competitor, the
Complainant herein.
Accordingly, pursuant to Rule 4(i), it is decided
that the domain names
"Northwestplumbing.com" and "Drainstation.com" should
be transferred from Respondent to the Complainant.
Dated: April 4, 2000
Judge James P. Buchele (Retired)
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