Generic Top Level Domain Name (gTLD) Decisions

The Complainant is Travel In A Moment, Inc., Brooklyn, NY, USA ("Complainant") represented by Peter M. Levine. The Respondent is F. S. Janco, Westport, CT, USA ("Respondent").

The domain name at issue is <momentsnoticetravel.com>, registered with Network Solutions, Inc.

The undersigned, Nelson A. Diaz, 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 March 8, 2001; the Forum received a hard copy of the Complaint on March 9, 2001.

On March 16, 2001, Network Solutions, Inc. confirmed by e-mail to the Forum that the domain name <momentsnoticetravel.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 March 16, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of April 5, 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@momentsnoticetravel.com by e-mail.

A timely response was received and determined to be complete on March 20, 2001. A timely additional response was received from Complainant on March 28, 2001.

On March 26, 2001, pursuant to Complainant’s request to have the dispute decided by a one member Panel, the Forum appointed Nelson A. Diaz as Panelist.

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

Complainant, a discount travel club and travel agent, owns two federally registered marks, including MOMENT’S NOTICE (Registration No. 210,594) for travel related services. Complainant does business under the MOMENT’S NOTICE service mark and has continuously used the mark in commerce since 1983. In August 1997 Complainant registered the domain name <moments-notice.com>. Complainant has since developed a significant presence on the Internet using this domain name.

On or about May 18, 2000, Respondent registered the domain name <momentsnoticetravel.com> with the Registrar. On January 9, 2001, Respondent contacted Complainant and offered to sell the contested domain name. On January 10, 2001, Respondent informed Complainant that the sale price was $5,000, a cost that exceeds the $70 registration fee paid by Respondent for the domain name.

To obtain the requested relief, paragraph 4(a) of the Policy requires the Complainant to prove each of the following:

Under paragraph 4(c) of the Policy, evidence of a registrant’s rights or legitimate interest in the domain name includes:

Respondent contends that the domain name was registered for future use in connection with an undisclosed business venture and points to the existence of a "business plan." Purportedly for reasons of confidentiality, Respondent chose not to produce a copy of the so-called business plan and no further information is given about the nature of the prospective business. Based on the failure to produce any evidence of a business plan, an inference may be fairly drawn that there never was an intention to use the contested domain name for a bona fide business. See Knightside Marketing Svcs. v. Promociones & Proyectos, [1984] USCA1 89; 728 F.2d 572, 575 (1^st Cir.1984) ("When the contents of a document are relevant to an issue in a case, the trier of fact generally may receive the fact of the document’s nonproduction…as evidence that the party which has prevented production did so out of the well-founded fear that the contents would harm him") (quoting Wigmore on Evidence 291, at 288 (1979).

The Panel agrees with Complainant that Respondent’s sole "use" has been to offer the domain name for sale. See Hewlett-Packard Co. v. High Performance Networks, Inc., FA 95083 (Nat. Arb. Forum July 31, 2000) (finding no rights or legitimate interests where the Respondent registered the domain name with the intention of selling the domain name). The Panel thus finds that Respondent has undertaken no demonstrable preparations to use the domain name in connection with a bona fide offering of goods and services as set forth in 4(c)(i) of the Policy.

Complainant avers, and Respondent does not deny, that Respondent is not commonly known by the "moments notice travel" term contained in the domain name. Accordingly, the Panel finds that Respondent has not been commonly known by the domain name as set forth under Policy ¶ 4(c)(ii).

Finally, the Panel finds that Respondent cannot claim a non-commercial or fair use of the domain name under Policy ¶ 4(c)(iii).

Complainant thus has met its burden of proof with regard to the second prong under paragraph 4(a).

Under paragraph 4(b) of the Policy, evidence of Respondent’s bad faith registration and use includes:

The evidence shows that Respondent registered the domain name for the purpose selling the domain name to Complainant for an amount in excess of out of pocket costs associated with the registration of the domain name. See Policy ¶ 4(b)(i). A demand for payment, such as that made by Respondent, has been deemed evidence of bad faith where Respondent has made no other use of the domain name. See Educational Testing Service v. TOEFL, D2000-0044 (WIPO Mar. 16, 2000) (finding that a general offer of sale combined with no legitimate use of the domain name constitutes registration and use in bad faith); see also World Wrestling Fed’n Entertainment, Inc. v. Bosman, D99-0001 (Jan. 14, 2000) (finding that demand for payment constituted both bad faith use and registration).

The Panel finds that Complainant has met its burden of showing that Respondent has registered and used the domain name in bad faith.

Under the standards applicable to this proceeding, the Panel concludes that Complainant is entitled to relief on the record presented. The Panel concludes: (a) that the domain name <momentsnoticetravel.com> is confusingly similar to the service mark MOMENT’S NOTICE; (b) that Respondent has no rights or legitimate interest in the domain name; and (c) that Respondent registered and used the domain name in bad faith. Therefore, pursuant to the Policy and the Rules, the Panel orders that the domain name <momentsnoticetravel.com> be transferred to Complainant.