Generic Top Level Domain Name (gTLD) Decisions

The Complainant is Lush LTD , Poole, Dorset, United Kingdom ("Complainant") represented by Stephen M. Lane, Sim, Hughes, Ashton & McKay. The Respondent is Lush Environs, Houston, TX, USA ("Respondent").

The domain name at issue is "lush.net" 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.

Hon. James A. Carmody, as Panelist.

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on December 6, 2000; The Forum received a hard copy of the Complaint on December 11, 2000.

On December 8, 2000, Network Solutions, Inc. confirmed by e-mail to the Forum that the domain name "lush.net" 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 December 14, 2000, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 3, 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 Respondentís registration as technical, administrative and billing contacts, and to postmaster@lush.net 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 January 8, 2001, pursuant to Complainantís request to have the dispute decided by a One Member panel, the Forum appointed the Hon. James A. Carmody 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.

The Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") state the following with regard to default cases:

In this case, Respondent has not submitted a response, and therefore this Panelist may infer, for the purposes of this decision, that the averments in the complaint are true.

See Talk City, Inc. v. Robertson, D2000-0009, (WIPO Feb. 29, 2000) ("In the absence of a response, it is appropriate to accept as true all allegations of the Complaint").

The Panel takes note that Respondent registered the domain name in dispute on January 1, 1997, listing Lush Environs as Registrant and William S. Lush as Administrative Contact.

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 lush.net is identical to the Complainantís mark LUSH. Policy  4(a)(i). See Kabushiki Kaisha Toshiba v. Shan Computers, D2000-0325 (WIPO June 27, 2000) (finding that the domain name <toshiba.net> is identical to the Complainantís trademark TOSHIBA); Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as "net" or "com" does not affect the domain name for the purpose of determining whether it is identical or confusingly similar). The word "lush," defined as "expensive and luxurious," Cambridge International Dictionary of English, is descriptive of many products and services.

Complainant has used the trademark LUSH since 1994, i.e., commencing three years before Respondentís registration of the domain name at issue on January 1, 1997. Complainant also has registered this trademark in the U.S. and around the world. Complainant, as far as can be seen from the Complaint, waited four years before challenging Respondentís registration and use of the domain, lush.net. The Complaint does not allege that any contact, in the form of a "cease and desist" letter, or otherwise, was made or attempted with Respondent prior to commencement of this proceeding. In arguing that Respondent has no rights or legitimate interests in respect to the domain name, the Complainant states:

"The best evidence of this could be found by accessing the respondentís web site which contained the following message:

ëCurrent asking price of this network domain: $8,000 (car loan)

Chance of me coming down from that amount: 0.0001%

How much I trust you to browse my directory space: 0%

Why I donít have something interesting here instead of boring test: Because"

If that is the "best evidence" which Complainant can present after four years of presumably unchallenged use of the domain name by the Respondent, this Panel finds it insufficient, even if true and even in this default proceeding.

The Panel is mindful that the burden of proof rests with Respondent on this issue. Woolworths plc. v. David Anderson, D2000-1113 (Oct. 10, 2000) (finding that the burden of proof lies with the Respondent to demonstrate that he has rights or legitimate interests); The Body Shop International PLC v. CPIC NET and Syed Hussain, D2000-1214 (Nov. 26, 2000) (finding "that on the evidence provided by the Complainant and in the absence of any submissions from the Respondents, that the Complainant has established that (i) the Respondents are not using and have not used, or are not demonstrating and have not demonstrated, an intent to use the said domain name in connection with a bona fide offering of goods or services; (ii) the Respondents are not and have not been commonly known by the said domain name; and (iii) the Respondents are not making legitimate noncommercial or fair use of the said domain name, without intending to mislead and divert consumers or to tarnish Complainantís <THE BODY SHOP> trademark and service mark"). However, a Complainant must at least allege facts, which if true, would entitle him or her to relief.

Finally, on this point, the Panel notes from the NSI Verication Response in this proceeding, that the Respondentís name is "Lush Environs" and the Administrative Contact for the lush.net domain is William S. Lush.

Complainant contends that Respondentís registering the domain name for the purpose of selling it for $8,000, which is in excess of out of pocket costs, is evidence of bad faith registration and use. Policy  4(b)(i). However, there is no allegation that, over the four years since registration, there was any communication whatsoever between Complainant and Respondent with respect to sale of the domain name at issue. There is no allegation that any other behavior on the part of the Respondent constituted bad faith or constructive bad faith within the Policy. Once again, even in a default proceeding, Complainantís "best evidence" falls short. The Panel finds that Complainant has not alleged facts, which if true, would constitute bad faith on the part of the Respondent.

The Complainant having failed to establish all three elements required by the ICANN Policy Rule 4(a), it is the decision of the panel that the requested relief be denied.

Accordingly, for all of the foregoing reasons, it is ordered that the domain name, "lush.net" not be transferred from the Respondent to the Complainant.