Generic Top Level Domain Name (gTLD) Decisions

The Complainant is EMKA-Incorporated, Middletown, PA, USA ("Complainant"). The Respondent is E.K.M.A. Inc., Miami, FL, USA ("Respondent").

The domain name at issue is "EMKA.COM", registered with Network Solutions Inc. ("NSI").

Hon. James A. Carmody, as Panelist.

Complainant submitted a Complaint to the National Arbitration Forum ("The Forum") electronically on July 7, 2000; The Forum received a hard copy of the Complaint on July 7, 2000.

On July 11, 2000, NSI confirmed by e-mail to The Forum that the domain name "EMKA.COM" is registered with NSI and that the Respondent is the current registrant of the name. NSI has verified that Respondent is bound by the Network Solutions Service Agreement Version 5.0 and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s UDRP.

On July 11, 2000, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of July 31, 2000 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via email, post and fax, and to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts by email.

On August 2, 2000, having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, The Forum transmitted to the parties a Notification of Respondent Default.

On August 2, 2000, pursuant to Complainant’s request to have the dispute decided by a Single Member panel, The Forum appointed the Hon. James A. Carmody as Panelist.

Having reviewed the communications records in the case file, the Administrative Panel (the "Panel") finds that The Forum has discharged its responsibility under Paragraph 2(a) of the Uniform Rules "to employ reasonably available means calculated to achieve actual notice to Respondent." Therefore, the Panel may issue its Decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, The Forum’s Supplemental Rules and any rules and principles of law that the panel deems applicable, without the benefit of any Response from the Respondent.

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

A. Complainant

The Complainant contends that the Respondent has registered a domain name that is identical to its trademark registered for and in use by the Complainant. Further, the Complainant contends that the Respondent has no rights or legitimate interests to the domain name, and that the respondent has registered and is using the domain name in bad faith.

The Complainant asserts that the Respondent has registered the domain name in question to block its use by anyone else. The Complainant contends that the Respondent’s business is unrelated in anyway to the Complainant’s business.

The Respondent submitted no response in this matter. As a result, all reasonable inferences of fact in the allegations of the Complainant will be deemed true.

The Complainant owns the registered trademark for the mark, EMKA (registered July 7, 2000; No. 2,170,639). The Complainant’s business supplies industrial locks, hinges, and seals.

The Respondent registered the domain name in question on March 6, 1996. Since registration, the Respondent has made no use of this domain name.

The Complainant has been in contact with the Respondent in attempt to transfer the domain name. No agreement regarding the domain name was ever reached.

Paragraph 4(a) of the ICANN Uniform Domain Name Dispute Policy ("Policy") directs that the complainant must prove each of the following three elements to support a claim that a domain name should be cancelled or transferred:

(1) the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;

(2) the Respondent has no rights or legitimate interests in respect of the domain name; and

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

The Complainant owns rights in the registered mark, EMKA. The Respondent’s domain name is identical to the Complainant’s mark. See Deutsche Bank AG v. Diego-Arturo Bruckner, D2000-0277 (WIPO May 30, 2000) (finding that the domain name <deutsche-bank-ag.com> is identical to the Complainant’s registered trademark "Deutsche Bank AG").

The Complainant asserts that the Respondent has no rights or legitimate interests in the domain names in question. The Respondent has not denied that assertion.

The Respondent’s business name is EKMA. The domain name in question is "EMKA.COM". The Respondent’s business is unrelated to the Complainant’s business. The Respondent is not commonly known by the Complainant’s marks. Policy ¶ 4(c)(ii).

The Respondent has not claimed to use the domain name in connection with any bona fide offering of goods or services nor for any legitimate or fair noncommercial use. Policy ¶ 4(c)(i), (iii). See Geocities v. Geociites.com, D2000-0326 (WIPO June 19, 2000) (finding that Respondent has no rights or legitimate interest in the domain name because the Respondent never submitted a response nor provided the panel with evidence to suggest otherwise).

Based on the above, the panel concludes that the Respondent has no rights or legitimate interests in the domain name in question.

The Complainant asserts that the Respondent acted and is acting in bad faith. The Respondent has not denied that assertion.

The Respondent has not developed the website located at the domain name in question. The Respondent has held the domain name for over 4 years. Passive holding of a domain name is evidence of registration and use in bad faith. See Telstra Corp. v. Nuclear Marshmallows, D2000-0003 (WIPO Feb. 18, 2000); Mondich & Amer. Vintage Wine Biscuits, Inc. v. Brown, D2000-0004 (WIPO Feb. 16, 2000) (holding that the Respondent’s failure to develop its www site in a two year period raises the inference of registration in bad faith).

Based on the above, the panel concludes that the Respondent registered and used the domain name in bad faith.

Having established all three elements required by the ICANN Policy Rule 4(a), it is the decision of the panel that the requested relief be granted.

Accordingly, for all of the foregoing reasons, it is ordered that the domain name, "EMKA.COM" be transferred from the Respondent to the Complainant.