Generic Top Level Domain Name (gTLD) Decisions

The Complainant is Snow Fun, Inc., Centerville, OH, USA ("Complainant") represented by Theodore D. Lienesch, of Thompson Hine & Flory LLP. The Respondent is James O'Connor, San Francisco, CA, USA ("Respondent").

The domain name at issue is "TERMQUOTE.COM" registered with Network Solutions, Inc.

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

John J. Upchurch as Panelist.

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on February 1, 2001; the Forum received a hard copy of the Complaint on January 31, 2001.

On February 2, 2001, Network Solutions, Inc. confirmed by e-mail to the Forum that the domain name "TERMQUOTE.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 February 6, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of February 26, 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@TERMQUOTE.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 March 5, 2001, pursuant to Complainant’s request to have the dispute decided by a One Member panel, the Forum appointed John J. Upchurch 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 alleges the following:

B. Respondent

Respondent has not submitted an official response in this matter. However, Respondent did submit a copy of correspondence Respondent sent to Complainant’s Counsel, which stated the following: "I would like to resolve the above-mentioned Domain Name dispute by conveying the above name to complainant you represent."

Complainant, Snow Fun, Inc., owns a federal registration for the mark TERMQUOTE. Complainant has used its mark in connection with insurance consulting and brokering services.

Respondent, James O’Connor, is in the same business as Complainant. On February 23, 2001, Respondent contacted Complainant’s attorney and expressed his willingness to resolve this dispute by transferring the domain name at issue to Complainant. To date, Respondent has made no legitimate use of the disputed domain name.

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 formal 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 federally registered mark, TERMQUOTE.

The Panel finds Respondent’s domain name, TERMQUOTE.COM, to be identical to Complainant’s well-established mark. See Interstellar Starship Services Ltd. v. EPIX, Inc., 983 F.Supp. 1331, 1335 (D.Or. 1997) (epix.com "is the same mark" as EPIX); see also Football Ass’n Ltd. v. UKIP, D2000-1359 (WIPO Dec. 15, 2000) (finding that domain name "facup.com" is clearly identical to the FA CUP trademark belonging to Complainant).

The Panel finds that Respondent has no rights or legitimate interests in the domain name at issue because Respondent is not commonly known by the domain name, 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).

In addition, Respondent does not oppose the remedy requested by Complainant, which demonstrates Respondent’s lack of rights and legitimate interests in the domain name at issue. See Marcor International v. Len Langevin, FA 96317 (Nat. Arb. Forum Jan 12, 2001) (Respondent’s willingness to transfer the domain name at issue indicates that it has no rights or legitimate interests in the domain name in question).

The Panel finds that Respondent registered the domain name at issue in bad faith because as Complainant’s competitor Respondent had to have been aware of Complainant’s mark prior to registering the domain name. 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).

Also, the evidence indicates Respondent did not select the disputed domain name at random, it intentionally incorporated Complainant’s mark into its domain name, which constitutes bad faith. See Dr. Karl Albrecht v. Eric Natale, FA 95465 (Nat. Arb. Forum Sept. 16, 2000) ("The Respondent intentionally registered a domain name which uses the Complainant’s name. There is no reasonable possibility that the name karlalbrecht.com was selected at random. There may be circumstances where such a registration could be done in good faith, but absent such evidence, the Panel can only conclude that the registration was done in bad faith.").

Moreover, Respondent has not used the domain name at issue since its registration. See Alitalia –Linee Aeree Italiane S.p.A v. Colour Digital, D2000-1260 (WIPO Nov. 23, 2000) (finding bad faith where the Respondent made no use of the domain name in question and there are no other indications that the Respondent could have registered and used the domain name in question for any non-infringing purpose).

Finally, Respondent has agreed to transfer the disputed domain name to Complainant. See Marcor International v. Len Langevin, FA 96317 (Nat. Arb. Forum Jan 12, 2001) (Respondent’s registration and use of the domain name at issue coupled with its expressed willingness to transfer the name amply satisfies the bad faith requirements set forth in ICANN Policy).

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, TERMQUOTE.COM, be transferred from Respondent to Complainant.