Generic Top Level Domain Name (gTLD) Decisions

THE NATIONAL ARBITRATION FORUM
P. O. BOX 50191
MINNEAPOLIS, MINNESOTA 55405 USA

_______________________________________________

COMPLAINANT

vs.

Deniel Begg
1404 Windsor Drive
Brockville, ON
K6V 5X4 Canada

RESPONDENT

DECISION

FILE NO.: FA0002000093559

The above-entitled matter came on for an administrative hearing on March 13, 2000 before the undersigned arbitrator on the Complaint of Michael J. Swan, representative of Neon Software, Inc. ("Neon" or "Complainant"), against Daniel Begg ("Begg" or "Respondent") who did not submit a response or otherwise appear personally or through counsel. Upon the written submitted record including only the Complaint, the following DECISION is rendered:

PROCEDURAL FINDINGS

Domain Name: cybergauge.com

Domain Name Registrar: Network Solutions

Domain Name Registrant: Daniel Begg

Date of Domain Name Registration: January 12, 2000

Date Complaint Filed: February 3, 2000

Date of Commencement of the Administrative Proceeding in Accordance with Rule 2(a) and

Rule 4(c)[1]: February 4, 2000.

Due Date for Response: February 28, 2000. No Response filed.

After reviewing the Complaint, and determining it to be in administrative compliance, the National Arbitration Forum ("Forum") forwarded the Complaint to the Respondent, on February 4, 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 that the administrative proceeding had commenced. The Complaint was then docketed and forwarded to the undersigned arbitrator for decision. Respondent did not submit a response to the Forum within twenty (20) days pursuant to Rule 5(a).

FINDINGS OF FACT

1. On February 8, 2000, Network Solutions confirmed that Respondent registered the domain name "cybergauge.com" under the registrant name Daniel Begg, 1404 Windsor Drive, Brockville, ON, K6V 5X4 Canada, showing Begg, Daniel, groundzero@recorder.ca, 613 342 1942, as Administrative Contact. Network Solutions acknowledged the commencement of this administrative proceeding and that Respondent is bound by the Network Solutions Service Agreement Version 5.0. Accordingly, Respondent agreed to resolve any dispute regarding its domain name registration pursuant to ICANN's Rules for Uniform Domain Name Dispute Resolution Policy and the Uniform Domain Name Dispute Resolution Policy. Neither the Complainant nor Respondent contest the jurisdiction of the Forum or the undersigned arbitrator to resolve this controversy.

2. By virtue of the fact that there is no appearance of any kind by Respondent, all reasonable inferences of fact in the allegations of the Complaint will be taken to be true.

3. Complainant is the owner of a trademark registered with the United States Patent and Trademark Office under Reg. No. 2,073,649 on June 24, 1997, the mark being "CYBERGAUGE."

4. Complainant has been selling goods domestically, internationally and over the Internet under the name "CyberGauge" since March 31, 1996.

5. Email correspondence between Complainant and Respondent strongly suggests that Respondent has not "had a chance to anything" with the cybergauge.com domain as of a few days after acquiring it in January of 2000 and that he is seeking to obtain $700.00 (US) from Complainant to relinquish the domain name. The acquisition price of the domain name paid by Respondent was $70.00 (US).

CONCLUSION

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:

1. Complainant has valuable and legally protectable rights in the mark: "CYBERGAUGE," dating back four years or more.

2. Respondent has not used and has no legally protectable rights in the mark "CYBERGAUGE" and has refused to relinquish or transfer the domain, cybergauge.com, to Complainant except for an exorbitant premium. I find this to be ample evidence of bad faith on the part of Respondent to entitle Complainant to relief as sought.

DECISION

Based upon the above findings and conclusions, and pursuant to Rule 4(i) of the ICANN's Rules for Uniform Domain Name Dispute Resolution Policy and the National Arbitration Forum's Supplemental Rules to ICANN's Uniform Domain Resolution Policy, it is decided as follows:

THE UNDERSIGNED DIRECTS THAT THE DOMAIN NAME "CYBERGAUGE.COM," REGISTERED BY RESPONDENT DANIEL BEGG, BE TRANSFERRED TO COMPLAINANT NEON SOFTWARE, INC.

Signed this 13th day of March, 2000 by Judge James A. Carmody (Retired), arbitrator.

Honorable James A. Carmody