DECISION

Gallup Inc. v. Eric Keller

Claim Number:  FA0107000098056

PARTIES

Complainant is Gallup, Inc., Lincoln, NE (“Complainant”) represented by Jay Begler, of Buchanan Ingersoll, PC.  Respondent is Eric Keller, Ewing, NJ (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME 

The domain name at issue is <thegalluppoll.com>, registered with Intercosmos Media Group.

PANEL

The undersigned certifies that they have acted independently and impartially and to the best of their knowledge have no known conflicts in serving as Panelists in this proceeding.

The Honorable Charles K. McCotter, Jr. (Ret.), Honorable James Carmody (Ret.), and

P. Jay Hines, Esq. as Panelists.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on July 12, 2001; the Forum received a hard copy of the Complaint on July 12, 2001.

On July 12, 2001, Intercosmos Media Group confirmed by e-mail to the Forum that the domain name <thegalluppoll.com> is registered with Intercosmos Media Group and that the Respondent is the current registrant of the name.  Intercosmos Media Group has verified that the Respondent is bound by the Intercosmos Media Group 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 July 16, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of August 6, 2001 by which the Respondent could file a Response to the Complaint, was transmitted to the Respondent via e-mail, post and fax, to all entities and persons listed on the Respondent’s registration as technical, administrative and billing contacts, and to postmaster@thegalluppoll.com by e-mail.

Having received no Response from the Respondent, using the same contact details and methods as were used for the Commencement Notification, the Forum transmitted to the parties a Notification of the Respondent Default.

On August 16, 2001, pursuant to the Complainant’s request to have the dispute decided by a three-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.), Honorable James Carmody (Ret.), and P. Jay Hines, Esq. as Panelists.

Having reviewed the communications records, the Administrative Panel (the “Panel”) finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “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.

RELIEF SOUGHT

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

PARTIES’ CONTENTIONS

A.        Complainant

The Complainant contends that the domain name registered by the Respondent is identical or confusingly similar to the trademarks in which the Complainant has rights, that the Respondent has no rights or legitimate interest in respect of the Respondent’s domain name, and that the Respondent’s domain name has been registered in bad faith.

B.         Respondent

The Respondent submitted no response.  As a result, all reasonable inferences of fact in the allegations of the Complainant will be deemed true.  See, Vertical Solutions Management, Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000).

FINDINGS

1.         The Complainant is the largest and oldest opinion polling service in the United States and the world.  Established prior to World War II, the Complainant has used the trademarks GALLUP and GALLUP POLL as trademarks for over sixty years.  (These marks and other GALLUP elemented marks shall be referred to herein collectively as the "GALLUP Marks").  The name and mark GALLUP is one of the best known trademarks in the country.

2. The Complainant has registered GALLUP, GALLUP POLL and other GALLUP marks, well before the registration of <thegalluppoll.com> by the Respondent. 

3. The Complainant is the owner of the following domain names:  gallup.net; gallup-poll.com; gallup-poll.org; and gallup-consulting.com. 

4. Concentric Host states on its page:  "www.thegalluppoll.com Not Available.  The domain name www.thegalluppoll.com which you are trying to access is currently unavailable.  This may occur for several reasons -- the name may have changed, or it may have moved to a new location.  Please try to access the site later, or contact the site's administrator."

5. The Respondent is not a licensee of the Complainant, nor has the Respondent ever been authorized by the Complainant to use the domain name <thegalluppoll.com> or any name including GALLUP.

6. The Respondent has never been in the polling business.

DISCUSSION

Paragraph 15(a) of 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.”

In view of the Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of the Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules.

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 Complainant has rights to THE GALLUP POLL mark and related GALLUP marks by virtue of its multiple trademark and service mark registrations with the United States Patent and Trademark Office.  The <thegalluppoll.com> domain name is identical to the Complainant's THE GALLUP POLL and related marks.  The addition of a gTLD does not prevent a finding that a disputed domain name is identical for the purposes of Policy ¶ 4(a)(i).  E.g., Amherst LLC d/b/a Amherst Corporate Sales & Solutions v. IFC Corporation, FA 96768 (Nat. Arb. Forum Apr. 3, 2001) (finding that Respondent’s domain name <customcommerce.com> is identical to Complainant’s CUSTOM COMMERCE trademark registration).  Furthermore, in Gallup Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum January 23, 2001), the Panel rendered a decision transferring the domain name "galluppoll.com" from the Respondent's company, Amish Country Store, to the Complainant. The findings and conclusions in that case are dispositive in this case, as the domain name at issue here is virtually identical to the domain in the earlier case, except for the addition of the word "the" to "galluppoll."

Rights or Legitimate Interests

The Respondent has no rights or legitimate interests in the <thegalluppoll.com> domain name.  The Respondent is not making any use of the <thegalluppoll.com> domain name.  Passive holding of a domain name creates a presumption that the Respondent has no rights or legitimate interests pursuant to Policy ¶ 4(a)(ii).  See, e.g., Flor-Jon Films, Inc. v. Ron Larson, FA 94974 (Nat. Arb. Forum July 25, 2000) (finding that Respondent’s failure to develop the site demonstrates a lack of legitimate interest in the domain name).  Also, in Gallup Inc. v. Amish Country Store, supra. the Panel found that the Respondent’s  company did not have rights in domain name "galluppoll.com" when the Respondent was not known by the mark.

Registration and Use in Bad Faith

The Respondent registered and used the domain name in bad faith.  Absence of legitimate use or rights is a basis for finding registration and use in bad faith. See Flor-Jon Films, Inc. v. Ron Larson, supra. Furthermore, the Respondent's passive holding of the <thegalluppoll.com> domain name, when the name is identical to the Complainant's well-known mark, is evidence of bad faith under Policy ¶ 4(a)(iii).  See The Caravan Club v. Mrgsale, FA 95314 (Nat. Arb. Forum Aug. 30, 2000) (finding that the Respondent had made no use of the domain name or website that connects with the domain name, and passive holding of a domain name permits an inference of registration and use in bad faith).  Additionally, in Gallup Inc. v. Amish Country Store, supra. the Panel found bad faith on similar facts.

DECISION

Based upon the above findings and conclusions, we find in favor of the Complainant.  Therefore, the relief requested by the Complainant pursuant to Paragraph 4.i of the Policy is Granted.  The Respondent shall be required to transfer to the Complainant the domain name<thegalluppoll.com>.

Honorable Charles K. McCotter, Jr. (Ret.), Panelist Chair

Dated:   August 21, 2001

---

WorldLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.worldlii.org/int/other/GENDND/2001/1306.html