Generic Top Level Domain Name (gTLD) Decisions

The Complainant is Quantum Instruments, Inc., Garden City, NY, USA ("Complainant") represented by Michael J. Brown, of Curtis, Mallet-Prevost, Colt & Mosle. The Respondent is Tim Dodge, Port Richey, FL, USA ("Respondent").

The domain name at issue is "quantumbattery.com" registered with Network Solutions.

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

Judge Ralph Yachnin, as Panelist.

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on January 24, 2001; the Forum received a hard copy of the Complaint on January 24, 2001.

On January 26, 2001, Network Solutions confirmed by e-mail to the Forum that the domain name "quantumbattery.com" is registered with Network Solutions and that the Respondent is the current registrant of the name. Network Solutions has verified that Respondent is bound by the Network Solutions 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 January 26, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of February 15, 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@quantumbattery.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 February 23, 2001, pursuant to Complainant’s request to have the dispute decided by a One Member panel, the Forum appointed Judge Ralph Yachnin 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 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

Complainant contends Respondent’s domain name, quantumbattery.com, is confusingly similar to its registered mark, QUANTUM. In addition, Respondent has no rights or legitimate interests in the domain name at issue. And finally, Respondent has registered and used the domain name at issue in bad faith.

B. Respondent

Respondent has not submitted a response in this matter.

Complainant, Quantum Instruments, Inc., owns the registered mark QUANTUM, which it has used since 1978 in the United States and other countries in connection with the sale of photographic equipment, including batteries and battery packs.

Respondent, Tim Dodge, was employed by Complainant’s competitor and was aware of Complainant’s long standing rights in its registered mark. Respondent has not legitimately used the domain name at issue since its registration. Accordingly, Respondent has used the disputed domain name primarily to redirect Internet traffic to digitalcamerabattery.com, which offers goods that directly compete with Complainant’s products, namely camera batteries.

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.

Complainant’s rights are evidenced by its registered mark QUANTUM. Respondent’s domain name, quantumbattery.com, is confusingly similar to Complainant’s well-established mark because the domain name combines Complainant’s mark with a generic term which directly relates to the Complainant’s products. See Space Imaging LLC v. Brownwell, AF 0298 (eResolution Sept. 22, 2000) (finding confusing similarity where the Respondent’s domain name combines the Complainant’s mark with a generic term that has an obvious relationship to the Complainant’s business); see also Sony Kabushiki Kaisha v. Inja, Kil, D2000-1409 (WIPO Dec. 9, 2000) (finding that "[n]either the addition of an ordinary descriptive word…nor the suffix ‘.com’ detract from the overall impression of the dominant part of the name in each case, namely the trademark SONY" and thus Policy 4(a)(i) is satisfied).

Accordingly, the Panel finds that Policy ¶ 4(a)(i) has been sufficiently demonstrated.

Complainant has shown that Respondent is not commonly known by the domain name at issue nor is Respondent using the domain name in connection with a legitimate noncommercial or fair use. See Hartford Fire Ins. Co. v. Webdeal.com, Inc., FA 95162 (Nat. Arb. Forum Aug. 29, 2000) (finding that Respondent has no rights or legitimate interests in domain names because it is not commonly known by Complainant’s marks and Respondent has not used the domain names in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use).

Also, Respondent’s only use of the domain name at issue has been to divert Internet traffic to a web site that directly competes with Complainant’s products. See Kosmea Pty Ltd. v. Carmel Krpan, D2000-0948 (WIPO Oct. 3, 2000) (finding no rights in the domain name where the Respondent has an intention to divert consumers of the Complainant’s products to the Respondent’s site by using the Complainant’s mark).

Further, Respondent asserted no rights or legitimate interests in regard to the domain name in question. As a result, Respondent’s failure to show evidence sufficient to refute Complainant’s contentions, entitles the Panel to conclude that Respondent has no such rights or legitimate interests in relation to the domain name at issue. See Canadian Imperial Bank of Commerce v. D3M Virtual Reality Inc. and D3M Domain Sales, AF-0336 (eResolution Sept. 23, 2000) (finding no rights or legitimate interest where no such right or interest is immediately apparent to the Panel and Respondent has not come forward to suggest any such right or interest that it may possess); see also Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that "Respondents’ failure to respond can be construed as an admission that they have no legitimate interest in the Domain Names").

Consequently, the Panel finds Policy ¶ 4(a)(ii) has been satisfied.

Complainant has shown Respondent registered the domain name at issue intentionally to attract Internet users to its web site, or other online location strictly for commercial gain by creating a likelihood of confusion with Complainant’s well-established mark and by linking the disputed domain name to a site that offers competing products. See America Online, Inc. v. Xianfeng Fu, D2000-1374 (WIPO Dec. 11, 2000) (finding is that the Respondent intentionally attempted to attract Internet users to his web-site for commercial gain by creating a likelihood of confusion with the Complainant’s mark by offering the same chat services via his web-site as the Complainant).

Moreover, Respondent worked for Complainant’s competitor, therefore Respondent had to have been aware of Complainant’s mark and the confusion that the domain name at issue would create. See Reuters Ltd. v. Teletrust IPR Ltd., D2000-0471 (WIPO Sept. 8, 2000) (finding that the Respondent demonstrated bad faith where the Respondent was aware of the Complainant’s famous mark when registering the domain name as well as aware of the deception and confusion that would inevitably follow if he used the domain names); see also Kraft Foods (Norway) v. Wide, D2000-0911 (WIPO Sept. 23, 2000) (finding that the fact "that the Respondent chose to register a well known mark to which he has no connections or rights indicates that he was in bad faith when registering the domain name at issue").

Having established all three elements required under ICANN Policy, the Panel concludes that the requested relief shall be and is hereby granted.

Accordingly, it is Ordered that the domain name, quantumbattery.com, be transferred from Respondent to Complainant.