DECISION

MindDazzle InterActive v. Mindfire

Claim Number: FA0104000097078

PARTIES

The Complainant is MindDazzle InterActive, Los Angeles, CA, USA (“Complainant”).  The Respondent is MINDAZZLE, Pasadena, CA, USA (“Respondent”) represented by Jill Pietrini.

REGISTRAR AND DISPUTED DOMAIN NAME 

The domain name at issue is "mindazzle.com", registered with Network Solutions, Inc.

PANEL

The undersigned certifies that he has acted independently and impartially and to the best of his knowledge, has no known conflict in serving as Panelist in this proceeding.

John A. Bender, Jr. as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (“the Forum”) electronically on April 18, 2001; the Forum received a hard copy of the Complaint on April 20, 2001.

On April 23, 2001, Network Solutions, Inc. confirmed by e-mail to the Forum that the domain name "mindazzle.com" is registered with Network Solutions, Inc. and that the Respondent is the current registrant of the name.  Network Solutions, Inc. has verified that Respondent is bound by the Network Solutions, Inc. 5.0 registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).

On April 24, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of May 14, 2001 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 Respondent’s registration as technical, administrative and billing contacts, and to postmaster@mindazzle.com by e-mail.

A timely response was received and determined to be complete on May 14, 2001.

On May 24, 2001, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed John A. Bender, Jr. as Panelist.

RELIEF SOUGHT

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

PARTIES’ CONTENTIONS

A. Complainant

Complainant contends it has rights in the name, that respondent has registered the name despite those rights and is in bad faith in filing and using the name.  Specifically Complainant alleges interference in its e-commerce because the name is so similar, even though the parties are in different businesses.

B. Respondent

Respondent contends Complainant has proven no clear right in the domain name; not has Complainant shown the requisite bad faith and.

FINDINGS

Complainant’s request is denied for the following reasons.

DISCUSSION

Paragraph 15(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) instructs this Panel to “decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.”

Paragraph 4(a) of the Policy requires that the Complainant must prove each of the following three elements to obtain an order 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.

Identical and/or Confusingly Similar

The domain name is Confusingly similar.

Rights or Legitimate Interests

While there may exist a common law trademark on the record before the panel there is no registered trade name or trademark upon which Complainant’s rights for these purposes may be established.  It is not for this forum to litigate whether a common law right exists.

Registration and Use in Bad Faith

There is no evidence of Registration and Use in bad faith.  The parties are in different businesses, and this is not a case in which the Complainant’s domain name lapsed.

DECISION

Complainant has not met the forum’s burden of proof.  Its claim is denied.

Honorable John A. Bender Jr., Panelist

Dated:  June 8, 2001

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