Generic Top Level Domain Name (gTLD) Decisions

The Complainant is Holt Lloyd International Ltd., Wilmslow, Cheshire, England ("Complainant") represented by Therese K. Francese, Arent Fox Kintner Plotkin & Kahn. The Respondent is Wilmington International, Inc., Orland Park, IL, USA ("Respondent").

The domain name at issue is "carrdaymartin.com" registered with Register.com.

On December 29, 2001, pursuant to Complainantís request to have the dispute decided by a One Member panel, the Forum appointed James P. Buchele as Panelist. The undersigned panelist 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.

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on November 22, 2000; The Forum received a hard copy of the Complaint on November 22, 2000.

On December 1, 2000, Register.com confirmed by e-mail to the Forum that the domain name "carrdaymartin.com" is registered with Register.com and that the Respondent is the current registrant of the name. Register.com has verified that Respondent is bound by the Register.com 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 December 4, 2000, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of December 26, 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@carrdaymartin.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.

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

Complainant asserts that the Respondentís domain name, carrdaymart.com, is virtually identical to its registered mark, CARR & DAY & MARTIN. In addition, Respondent has no rights or legitimate interests in the domain name in question. And finally, Respondent has acted in bad faith by demanding payment beyond out-of-pocket costs directly related to the domain name at issue.

B. Respondent

Complainant, Holt Lloyd International Ltd., is a subsidiary of Honeywell International Inc. and is also the parent company of Carr & Day & Martin Household Products Limited located in the UK. Complainant has used the mark, Carr & Day & Martin, for over ten years in connection with the sale of shoe, home care, and equine products. Complainant has invested substantial resources into research and development of products that bear the Carr & Day & Martin mark.

Respondent, Wilmington International, Inc., owns a company that has a marketing agreement with the Complainantís subsidiary, Carr & Day & Martin. The Respondentís company was granted the right to sell and market the Complainantís products within a limited geographic territory. However, the marketing agreement in no way allows Respondentís company to obtain a domain name bearing the Complainantís mark. Respondent has denied affiliation with the company involved in the Complainantís marketing agreement

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.

Complainantís rights are evidenced by its registered mark, CARR & DAY & MARTIN. Complainantís mark is found to be almost identical and therefore confusingly similar to the domain name in question. Policy  4.a.(i). The only difference between the Complainantís mark and the domain name at issue is the omission of the ampersands. See Universal City Studios, Inc. v. HarperStephens, D2000-0716 (WIPO Sept. 5, 2000) (finding that deleting the letter "s" from the Complainantís UNIVERSAL STUDIOS STORE mark does not change the overall impression of the mark and thus is confusingly similar to the Complainantís mark); see also Treeforms, Inc. v. Cayne Industrial Sales Corp., FA 95856 (Nat. Arb. Forum Dec. 18, 2000) (finding that confusion would result when Internet users, intending to access Complainantís web site, think that an affiliation of some sort exists between the Complainant and the Respondent, when in fact, no such relationship would exist).

The Panel finds that Complainant met its burden of showing that the domain name at issue is confusingly similar to complainantís mark.

Respondent asserted no rights or legitimate interests in the domain name at issue. Respondent is not commonly known by the domain name, nor is Respondent using the domain name in connection with a bona fide offering of goods, service or for a legitimate noncommercial or fair use. Policy  4.c.(i)-(iii).

Thus, Respondentís failure to submit a response entitles the Panel to conclude that Respondent has no such rights or legitimate interests in relation to the domain name at issue. See Pavillion Agency, Inc., Cliff Greenhouse and Keith Greenhouse v. Greenhouse Agency Ltd., and Glenn Greenhouse, D2000-1221 (WIPO Dec. 4, 2000) (finding that "Respondentsí failure to submit a response can be construed as an admission that they have no legitimate interest in the Domain Names").

The Panel finds the Respondent has no rights or legitimate interests in the domain name in question.

Respondent has acted in bad faith because circumstances indicate it has registered the domain name at issue primarily for the purpose of selling or otherwise transferring the domain name to the Complainant for valuable consideration in excess of out-of-pocket costs directly related to the domain name. See Wembley National Stadium Ltd. v. Thomson, D2000-1233 (WIPO Nov. 16, 2000) (finding bad faith based on the apparent willingness of the Respondent to sell the domain name in issue from the outset, though not at a price reflecting only the costs of registering and maintaining the name); see alsoWorld Wrestling Fed. Entertainment, Inc. v. Bosman, D99-0001 (WIPO Jan. 14, 2000) (finding that Respondent used the domain name in bad faith because he offered to sell the domain name for valuable consideration in excess of any out of pocket costs).

The Panel finds that Respondent registered and used the domain names in issue in bad faith.

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

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