Generic Top Level Domain Name (gTLD) Decisions

The Complainant is Wharfedale International Limited, Huntington, Cambs, England ("Complainant") represented by Ivan Hoffman. The Respondent is Alpha Sound & Vision, New York, NY, USA ("Respondent").

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

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

Judge Harold Kalina (Ret.) as Panelist.

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on November 27, 2000; The Forum received a hard copy of the Complaint on November 27, 2000.

On November 29, 2000, Network Solutions, Inc. confirmed by e-mail to the Forum that the domain name "wharfedale.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 ICANNís Uniform Domain Name Dispute Resolution Policy (the "Policy").

On November 30, 2000, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of December 20, 2000 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 Respondentís registration as technical, administrative and billing contacts, and to postmaster@wharfedale.com by e-mail.

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 December 26, 2000, pursuant to Complainantís request to have the dispute decided by a One Member panel, the Forum appointed Judge Harold Kalina (Ret.) as Panelist.

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 Forumís 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

This Complaint is based on the following factual and legal grounds under ICANN Rule 3(b)(ix):

B. Respondent

As the Respondent has failed to reply to the Complaint, there are no contentions of the Respondent to consider.

Complainant began first use of the WHARFEDALE mark in 1950. Complainant owns a federally registered trademark for this mark that was registered on July 18, 1978 on the principal register of the United States Patent and Trademark Office with registration number 1,096,573. Complainant is the owner of all rights of trademark in and to the mark "Wharfedale" for domestic electronic sound reproducing apparatus, namely loudspeakers and parts and fittings.

Respondent used the domain name wharfedale.com as a domain for Respondentís website that features loudspeakers and other stereo and electronic reproducing equipment.

The domain name in issue currently indicates that it is not being used in any manner whatsoever, reflecting that the site is "under construction."

Respondent is using Complainantís registered trademark in keywords and meta tags used by search engines to locate and identify sites bearing the registered "Wharfedale" trademark of Complainant.

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 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.

The domain name in question is identical to the Complainantís mark. See Wembley National Stadium Limited v. Thomson, D2000-1233 (WIPO Nov. 16, 2000) (finding that the domain name wembleystadium.net" is identical to the WEMBLEY STADIUM mark).

Complainant contends that Respondent has no rights or legitimate interest in the Domain Name pursuant to the Policy paragraph 4(a)(ii).

Respondent has not filed a Response and does not appear to have any rights or legitimate interest in the domain name.

Respondent has no legitimate rights to use the said registered trademark and corresponding domain since Complainant has a select number of authorized dealers who are legitimately licensed to carry, sell and advertise loudspeakers and stereo and electronic reproducing equipment and in so licensing said authorized dealers, Complainant retains control over its registered trademark including but not limited to the manner in which said registered trademark is displayed in connection with Complainantís products. Respondent is not an authorized dealer and has no right to use said mark whether as a domain or otherwise. Thus, since Respondent is not an authorized dealer in Complainantís loudspeakers and thus not authorized or licensed to use the registered trademark "Wharfedale" in connection with the sale of these loudspeakers, then under no circumstances may Respondent claim that it was using the contested domain, wharfedale.com, "in connection with a bona fide offering of goods or services."

Further, based upon the foregoing facts, it is evident that Respondent has never been commonly known by the contested domain name and that Respondent is not making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.

Thus, the Panel concludes that the Respondent has no rights or legitimate interests in the domain name.

Complainant contends that Respondent registered and is using the domain name in bad faith in violation of the Policy paragraph 4(a)(iii).

Paragraph 4(b) of the Policy sets out four non-exclusive criteria, which shall be evidence of the registration and use of a domain name in bad faith.

The Panel concludes that the Respondent registered the domain name primarily for the purpose of disrupting the Complainantís business. Policy  4(b)(iii). The Respondent is not a licensed dealer of the Complainantís products, but rather, offers services directly identical to the Complainantís services. See Fossil Inc. v. NAS, FA 92525 (Nat. Arb. Forum Feb. 23, 2000) (finding that the Respondent acted in bad faith by registering the domain name <fossilwatch.com> and using it to sell various watch brands).

Respondent is engaging in intentional and willful conduct designed expressly to mislead such visitors and divert traffic from those searching for Complainantís registered trademarked line of loudspeakers and equipment. Policy  4(b)(iv). See Identigene, Inc. v. Genetest Laboratories, D2000-1100 (WIPO Nov. 30, 2000) (finding bad faith where Respondent's use of the domain name at issue to resolve to a website where similar services are offered to Internet users is likely to confuse the user into believing that Complainant is the source of or is sponsoring the services offered at the site).

Thus, 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, "wharfedale.com" be transferred from the Respondent to the Complainant.