Generic Top Level Domain Name (gTLD) Decisions

P. O. Box 50191
Minneapolis, Minnesota 55405 USA
www.arbitration-forum.com

DAPEY ASSAF-HAMADRIKH LEASSAKIM BE NEW YORK, LTD
COMPLAINANT

vs.

CYBERMULTIMEDIA, INC.
RESPONDENT

DECISION
Forum File No.: FA0003000094364

The above-entitled matter came on for an administrative hearing on April 24, 2000, before Paul A. Dorf, Arbitrator, on the Complaint of Dapey Assaf-Hamadrikh Leassakim Be New York, Ltd., by its attorney, Lauren B. Cohen, hereafter "Complainant" against Cybermultimedia, Inc.. There was no representation on behalf of Respondent. Upon the written submitted record, the following DECISION is made:

PROCEDURAL FINDINGS

Domain Names: dagmedia.com

Domain Name Registrar: Network Solutions, INc.

Domain Name Registrant:Cybermultimedia, Inc.

Date of Domain Name Registration:Unknown

Date Complaint Filed:March 27, 2000

Response Due Date: April 18, 2000

The Complainant filed its complaint with the National Arbitration Forum on the above-referenced date. In compliance with the rules, The Forum transferred the Complaint to the Respondent on March 29, 2000. The Respondent did not submit a response to The Forum within twenty (20) days pursuant to the rules.

That the Respondent registered the domain name with Network Solutions, Inc., the entity that is the Registrar of the domain name. By registering its domain name with said Registrar, Respondent agreed to resolve any dispute regarding its domain name through ICANN'S Uniform Domain Name Dispute Resolution Policy.

FINDINGS OF FACT

The manner in which the domain name(s) are identical or confusing are set out herein below:

Complainant, Dapey Assaf-Hamadrikh Leassakim Be New York, Ltd. (hereinafter referred to as "Complainant") is the owner of the trademark "DAG MEDIA" (hereinafter referred to as the "Mark") . The Mark has been used continuously since May 15, 1989 in connection with the Complainant's business of the publication and distribution of yellow page directories in print and on the worldwide web. A specimen of the Complainant's DAG MEDIA advertising rate sheet showing the prices for advertising in its directories is enclosed as Exhibit "A". On or about May 13, 1999, the principal shareholder and founder of the Complainant, Mr. Assaf Ran, initiated a public offering of DAG Media, Inc. A copy of the prospectus is enclosed herewith as Exhibit "B".

On or about May 21, 1999, the Complainant attempted to register the domain name "dagmedia.com"; however, it was prevented from doing so by the Respondent's having previously registered the domain name "dagmedia.com".

On December 31, 1999, the Complainant's attorney, Lauren B. Cohen, wrote a cease and desist letter to the Respondent, objecting to its use of the domain name. A copy of said letter is enclosed as Exhibit "C". To date, no response has been received by the Complainant or its attorney.

On or about October 22, 1999, at the request of Lauren B. Cohen, Complainant's attorney, Mr Leon Grant of Leon's Internet Services, sent an e-mail message, to the Respondent, inquiring as to its asking price for the subject domain name. An e-mail response from a Mr. Eric Stuerken of the Respondent was received on October 25, 1999, advising Mr. Grant to "Make an offer we can't refuse and the name is yours..." On October 29, 1999, Mr. Grant sent an e-mail message to the Respondent offering to purchase the subject domain name for $170.00. On November 1, 1999, Mr. Stuerken of the Respondent sent an e-mail message to Mr. Grant stating: "Knowing that they are a traded company on the OTC market, makes one almost feel insulted, with that type of offer .... Maybe i'll call their competition and see what it is worth to have DAGMEDIA.com point to their own web sites... thanks..." A copy of the two-page printout of the foregoing e-mail messages is enclosed as Exhibit D".

A recent check of the Respondent's two web sites, that is, "CyberMultiMedia.com" and "dagmedia.com" reveals that they have been taken down. However, the source code taken from the first site reveals the following:

"META NAME= 'keywords' CONTENT= 'cyberinultimedia, entrepreneur, domain, domains, domain name, domain names. url, url address, name, names, Internet. web, my name, internic, network solutions, domain names for sale, I domain sites, domain websites, domains for sale, register domain names. com, Internet, register domain name, look up domain names, www, domain legislation, legislation, bid for domain names, domain auction, domain auctions, auction, name actions"

"META NAME= 'description' CONTENT= '<B-The Ultimate in Domain Names for Sale: </B-cyberadoption.com, radicalmarketing.com, barrydiller.com, buyrating.com, michael23jordan.com, steinbrennersucks.com, chickbinks.com, girlybinks.com, cybersouthbeach.com, cheapdigital.com"

In this case, the domain name which is the subject of this Complaint is identical to the Complainant's corporate name and to its trademark. The Respondent has no intellectual property rights in "dagmedia.com", and said domain name does not consist of the legal name of the Respondent. The Respondent did not register said domain name until approximately one day before the initial public offering of DAG Media, Inc. The Respondent has not used the site; neither has it used the name "dagmedia.com" or any variation of it as a trade mark in connection with the sale of any goods or services. It is clear from a reading of the above source code as well as the Respondent's communications with Mr. Leon Grant of Leon's Internet Services that the Respondent registered the subject domain name in bad faith. It is clear that the Respondent perceived that the Complainant, as a publisher and distributor of yellow page directories on the Internet, would most likely seek to register its corporate/trademark name as a corresponding domain name, and that registering the subject domain name would prevent the Complainant from protecting its trademark in a corresponding domain name. The Respondent, in its e-mail communication with Mr. Grant has admitted that its objective is to sell the subject domain name.

Accordingly, the Complainant submits that ICANN should cancel the Respondent's registration of the subject domain name and any other domain names which are substantially the same or similar and susceptible to confusion in the minds of the public and impose appropriate sanctions on the Respondent; further, that ICANN should transfer the subject domain name to the ownership of the Complainant.

CONCLUSIONS

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 impartial, the undersigned makes the following findings and conclusions:

The undersigned has reviewed all the evidence presented in this case by both parties and has concluded to believe the facts and circumstances as set forth by the Complainant. For that reason, the undersigned decides that:

1. The domain names as registered by the Respondent are identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; and
2. the Respondent has no rights or legitimate interests in respect of the domain names; and
3. the Respondent domain names have been registered and are being used in bad faith.

It is therefore just, right and proper that the domain name Dagmedia.com be transferred to the Complainant.

DECISION

Based upon the above findings and conclusions, and pursuant to Rule 4(i), it is decided as follows:

THE UNDERSIGNED DIRECTS THAT THE DOMAIN NAMES DAGMEDIA.COM REGISTERED BY RESPONDENT, CYBERMULTIMEDIA, INC., BE TRANSFERRED TO COMPLAINANT, DAPEY ASSAF-HAMADRIKH LEASSAKIM BE NEW YORK, LTD

Dated: April 24, 2000, by Judge Paul A. Dorf, (ret.), Arbitrator

THE HONORABLE PAUL A. DORF, (ret.) Arbitrator