Generic Top Level Domain Name (gTLD) Decisions

Complainant is Amherst LLC d/b/a Amherst Corporate Sales & Solutions, Merrimack, NH, USA ("Complainant") represented by David P. Van Der Beken. Respondent is IFC Corporation, Citrus Heights, CA, USA ("Respondent").

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

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.

Judge Ralph Yachnin, as Panelist.

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on February 27, 2001; the Forum received a hard copy of the Complaint on February 27, 2001.

On March 1, 2001, Network Solutions confirmed by e-mail to the Forum that the domain name "customcommerce.com" is registered with Network Solutions and that Respondent is the current registrant of the name. Network Solutions has verified that Re spondent 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 March 1, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 21, 2001 by which Respondent could file a Response to the Complaint, was transmitted to Responden t 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@customcommerce.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 29, 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 reaso nably 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 p rinciples of law that the Panel deems applicable, without the benefit of any Response from Respondent.

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

A. Complainant

B. Respondent

Respondent failed to present any response to the Panel.

Complainant is one of the America’s leading sellers of computer products, services and information. Complainant employs more than 500 employees at its Merrimack, New Hampshire headquarters and has regional sales offices in eight major national mark ets including San Antonio, Texas; Santa Clara, California; Sacramento, California; Tampa, Florida; Dallas, Texas; Houston, Texas; El Paso, Texas and Austin, Texas.

On or about February 1, 1998, Complainant created a way to share knowledge about electronic commerce with its customers. The concept not only allows Complainant’s customers to manage their procurements but to increase the customers’ productivity and te chnology skills and knowledge. The concept is called "CUSTOMCOMMERCE." Since its inception in 1998, over 60% of Complainant’s sales (or $222 million for the year 2000) are Internet assisted through its "CUSTOMCOMMERCE" web portal. Internet users have come to recognize and distinguish the name "CUSTOMCOMMERCE" with the products and services of Complainant.

Complainant owns a registered trademark with the United States Patent and Trademark Office for the CUSTOMCOMMERCE mark. (Registration No. 2, 323, 595; February 29, 2000).

Respondent registered the disputed domain name on August 17, 1998. Respondent has made no commercial use of the name "CUSTOMCOMMERCE" in any form other than its domain name registration, and has sold no goods or services under the name. The website con nected to the domain name also remains inactive.

Complainant has made extraordinary attempts to engage the Respondent and to ascertain its identity and use of the disputed domain name.

In order to ascertain Respondent's identity and its use of the domain name, Complainant tried numerous times and in numerous ways to communicate with the Respondent. On or about December 6, 2000, a "Whois" search showed that Respondent registered the d omain name in dispute by merely identifying itself with an address and name. Proper telephone numbers, e-mail address and agent or office for service of process were not listed.

After attempts to obtain a telephone number from directory assistance failed, Complainant attempted to locate Respondent by an on-line search of its name and domain name. These efforts were also fruitless.

Pressing further, on December 6, Complainant contacted the technical assistant listed on Respondents "Whois" search. The technical assistant did not have any information on the Respondent and indicated that the domain name has never been hosted on its server.

On December 19, 2000, Complaint sent a letter to Respondent at its listed address. Receiving no response, Complainant resent the same letter to Respondent on January 10, 2001 certified mail return receipt requested. The second letter was returned "Uncl aimed."

On January 13, 2001, a search at the corporate records department of the California Secretary of State's office revealed that Respondent was not registered as a California corporation, nor was it registered as a corporation qualified to do business in California, nor has it listed a registered agent or office for service of process notwithstanding the fact that the corporation laws of every state require corporations doing business in the state to qualify and specify its address and agent for legal pro cess. Thus although Respondent (a) listed itself as a corporation in its registration of the domain name CUSTOMCOMMERCE.COM as was indicated by its use of the word "Corporation" in its name; and (b) gave a California address as its place of business, its lack of registration with the California Secretary of the State’s Office shows that it is not legally "doing business" in California.

Furthermore, before applying for registration of its trademark on November 3, 1998, Complainant obtained a full trademark search from the well-known and respected trademark search firm Thomson & Thomson. The search did not reveal any federal, state , common law or domain name registrations or uses of the name "CUSTOMCOMMERCE" which conflicted with Complainant’s use.

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.

Respondent registered the domain name "CUSTOMCOMMERCE.COM," which is identical to Complainant’s registered service mark but for the ".com" suffix. Prior UDRP Panels have held that the ".com" is insignificant when determining whether a domain name i s identical or confusingly similar. See Visit America Inc. v. Visit America, FA 95093 (Nat. Arb. Forum Aug. 14, 2000) (finding that the ".com" is part of the Internet address and does not add source identity significance"). For that reason, Respond ent’s domain name is identical to Complainant’s trademark registration. See Banco Mercantil del Norte, S.A., v. Servicios de Comunicación En Linea, D2000-1215 (WIPO Nov. 23, 2000) (finding that the domain name, <banorte.com> is identic al to Complainant’s BANORTE trademark and commercial name). Therefore, the elements of Policy ¶ 4(a)(i) have been established.

Respondent has not responded to the Complaint. By failing to respond, Respondent has fallen short of asserting rights and legitimate interests in the domain name. See BIC Deutschland GmbH & Co. KG v. Tweed, D2000-0418 (WIPO June 20, 2000 ) ("By not submitting a response, Respondent has failed to invoke any circumstance which could demonstrate, pursuant to ¶ 4(c) of the Policy, any rights or legitimate interests in the domain name"). Nevertheless, Complainant must prove that Respondent can not meet any of the circumstances set forth in Policy ¶ 4(c).

Respondent has not used the domain name since registering it back in 1998. There also is no evidence that Respondent is making demonstrable preparations to use the domain name in connection with a commercial or non-commercial purpose. Thus, Respondent cannot claim rights and legitimate interests under Policy ¶ 4(c)(i) or 4(c)(iii). See Ziegenfelder Co. v. VMH Enterprises, Inc., D2000-0039 (WIPO Mar. 14, 2000) (finding that failure to provide a product or service or deve lop the site demonstrates that Respondents have not established any rights or legitimate interests in the said domain name).

In addition, there is no evidence indicating that Respondent is commonly known by the CUSTOMCOMMERCE term contained in the domain name. Policy ¶ 4(c)(ii).

Therefore, the requirements of Policy ¶ 4(a)(ii) have been fulfilled.

It is Complainant’s position that Respondent’s domain name should be considered as having been registered and being used in bad faith. The Panel agrees with Complainant’s position.

Respondent registered the domain name without providing a valid telephone number, e-mail address, or agent for service of process. Prior UDRP Panels have held that providing misleading or inaccurate information to the domain name registrar is evidence of bad faith. See Home Director, Inc. v. HomeDirector, D2000-0111, (WIPO Apr. 11, 2000) (finding that providing false or misleading information in connection with the registration of the domain name is evidence of bad faith); Video Direct Distri butors, Inc. v. Video Direct, Inc., FA 94724 (Nat. Arb. Forum June 5, 2000) (finding that Respondent has acted in bad faith by providing incorrect information to the registrar regarding the owner of the registered name); Visit America, Inc. v. Visi t America, FA 95093 (Nat. Arb. Forum Aug. 14, 2000) (finding that Respondent has acted in bad faith by providing incorrect information to the registrar regarding the owner of the registered name); Quixtar Inv., Inc. v. Smithberger and QUIXTAR-IBO, D2000-0138 (WIPO Apr. 19, 2000) (finding that use of false registration information constitutes bad faith). Thus, Respondent registered the domain name in bad faith by providing inaccurate and incomplete information to the Registrar.