Generic Top Level Domain Name (gTLD) Decisions

Complainant is Red Hat, Inc., Research Triangle Park, NC, USA ("Complainant") represented by James R. Davis, II, of Arent Fox Kintner Plotkin & Kahn. Respondent is David Cammack, Manteca, CA, USA ("Respondent").

The domain names at issue are <redhatasia.com>, <redhatasia.net>, <redhatasia.org>, <redhat-asia.com>, <redhat-asia.net>, and <redhat-asia.org> 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 Panelist in this proceeding.

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on March 26, 2001; the Forum received a hard copy of the Complaint on March 28, 2001.

On March 28, 2001, Network Solutions, Inc. confirmed by e-mail to the Forum that the domain names <redhatasia.com>, <redhatasia.net>, <redhatasia.org>, <redhat-asia.com>, <redhat-asia.net>, and <redhat-asia.org> are registered with Network Solutions, Inc. and that 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 28, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of April 17, 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@redhatasia.com, postmaster@redhatasia.net, postmaster@redhatasia.org, postmaster@redhat-asia.com, postmaster@redhat-asia.net, postmaster@redhat-asia.org 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 April 25, 2001, pursuant to Complainant’s request to have the dispute decided by a single-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 Forum’s Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any Response from Respondent.

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

A. Complainant

Respondent’s <redhatasia.com>, <redhatasia.net>, <redhatasia.org>, <redhat-asia.com>, <redhat-asia.net>, and <redhat-asia.org> domain names are confusingly similar to Complainant’s federally registered trademark.

Respondent has no rights or legitimate interests in the <redhatasia.com>, <redhatasia.net>, <redhatasia.org>, <redhat-asia.com>, <redhat-asia.net>, and

<redhat-asia.org> domain names.

Respondent registered and used the disputed domain names in bad faith.

B. Respondent

No response was received.

Since 1994, Complainant has used its famous RED HAT mark in connection with computer software for operating systems, system administration, and computer communications administration. Complainant obtained registration of the RED HAT mark on the Principal Register of the United States Patent and Trademark Office as Registration No. 2,142,662. Complainant has been in continuous use of its mark since its registration on March 10, 1998.

Complainant maintains offices and conducts business throughout Asia and the Pacific. Specifically, Complainant has operations located in Tokyo, Hong Kong, Singapore and Australia, offering products and services targeted in these markets as well as worldwide. Furthermore, Complainant offers its products and services through its <redhat.com> website. Complainant has invested millions of dollars in promoting, developing, and marketing its goods through the use of its RED HAT mark.

Respondent registered the <redhatasia.com>, <redhatasia.net>, <redhatasia.org>, <redhat-asia.com>, <redhat-asia.net>, and <redhat-asia.org> domain names on September 7, 1999.

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 <redhatasia.com>, <redhatasia.net>, <redhatasia.org>, <redhat-asia.com>, <redhat-asia.net>, and <redhat-asia.org> domain names are confusingly similar to Complainant’s federally registered RED HAT mark. The addition of the geographic location ("asia") to the end of the Complainant’s mark makes the domain names in dispute confusingly similar to Complainant’s mark. See CMGI, Inc. v. Reyes, D2000-0572 (WIPO Aug. 8, 2000) (finding that the domain name <cmgiasia.com> is confusingly similar to complainant’s CMGI mark); see also Net2phone Inc, v. Netcall SAGL, D2000-0666 (WIPO Sept. 26, 2000) (finding that the respondent’s registration of the domain name <net2phone-europe.com> is confusingly similar to complainant’s mark). The potential for these domain names to have a confusingly similar effect on consumers is further heightened by the fact that Complainant conducts a great deal of business throughout Asia.

Respondent failed to come forward to demonstrate any rights or legitimate interests in the <redhatasia.com>, <redhatasia.net>, <redhatasia.org>, <redhat-asia.com>, <redhat-asia.net>, and <redhat-asia.org> domain names. See Talk City, Inc. v. Robertson, D2000-0009, (WIPO Feb. 29, 2000) (stating that "In the absence of a response, it is appropriate to accept as true all allegations of the Complaint"); see also Woolworths plc. v. Anderson, D2000-1113 (Oct. 10, 2000) (finding that absent any evidence of preparation to use the domain name for any legitimate purpose, the burden of proof lies with the Respondent to demonstrate that he has rights or legitimate interests). Furthermore, there is a presumption that Respondent has no rights or legitimate interests with respect to the domain names in dispute where Respondent fails to submit a response. See Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that "Respondents’ failure to respond can be construed as an admission that they have no legitimate interest in the Domain Names").

Respondent’s registration of the <redhatasia.com>, <redhatasia.net>, <redhatasia.org>, <redhat-asia.com>, <redhat-asia.net>, and <redhat-asia.org> domain names, while linking them to a website which provides information and links related to products and services offered by Complainant fails to demonstrate use of the domain names in connection with a bona fide offering of goods or services. See America Online, Inc. v. Xianfeng Fu, D2000-1374 (WIPO Dec. 11, 2000) (finding that "[I]t would be unconscionable to find a bona fide offering of services in a respondent’s operation of [a] web-site using a domain name which is confusingly similar to the complainant’s mark and for the same business).

Furthermore, Respondent cannot demonstrate rights under Policy 4(c)(ii) because it is not commonly known by the domain names in dispute. See Victoria’s Secret et al v. Asdak, FA 96542 (Nat. Arb. Forum Feb. 28, 2001) (finding sufficient proof that Respondent was not commonly known by a domain name confusingly similar to Complainant’s VICTORIA’S SECRET mark because of Complainant’s well established use of the mark).

There is no evidence that demonstrates Respondent is making a legitimate noncommercial or fair use of the domain name. Policy 4(c)(iii). See Kosmea Pty Ltd. v. Carmel Krpan, D2000-0948 (WIPO Oct. 3, 2000) (finding no rights in the domain name where Respondent has an intention to divert consumers of Complainant’s products to Respondent’s site by using Complainant’s mark).

The Panel therefore concludes that Respondent does not have any rights or legitimate interests in the <redhatasia.com>, <redhatasia.net>, <redhatasia.org>, <redhat-asia.com>, <redhat-asia.net>, and <redhat-asia.org> domain names and that Complainant has satisfied Policy 4(a)(ii).

The Respondent’s registration of the <redhatasia.com>, <redhatasia.net>, <redhatasia.org>, <redhat-asia.com>, <redhat-asia.net>, and <redhat-asia.org> domain names, and directing them to websites that provide links to competitors of Complainant, is evidence of registration and use in bad faith, pursuant to Policy 4(b)(iv). See AltaVista v. Krotov, D2000-1091 (WIPO Oct. 25, 2000) (finding bad faith under Policy 4(b)(iv) where the Respondent linked the domain name to a website that offers a number of web services); see also ESPN, Inc. v. Ballerini, FA 95410 (Nat. Arb. Forum Sept. 15, 2000) (finding bad faith where the Respondent linked the domain name to another website <iwin.com>, presumably, the Respondent received a portion of the advertising revenue from site by directing Internet traffic to the site, thus using a domain name to attract Internet users, for commercial gain).

Respondent’s registration of the domain names in dispute, which contain the Complainant’s mark with the addition of a geographic location where the Complainant conducts business is evidence of bad faith. See Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that the "domain names are so obviously connected with the Complainants that the use or registration by anyone other than Complainants suggests ‘opportunistic bad faith’"); see also Sony Kabushiki Kaisha v. Inja, Kil, D2000-1409 (WIPO Dec. 9, 2000) (finding that bad faith registration and use where it is "inconceivable that the respondent could make any active use of the disputed domain names without creating a false impression of association with the Complainant").

Having established all three of the elements under the ICANN Policy, the Panel concludes that the requested relief should be hereby granted.

Accordingly, it is Ordered that the <redhatasia.com>, <redhatasia.net>, <redhatasia.org>, <redhat-asia.com>, <redhat-asia.net>, and <redhat-asia.org> domain names be transferred from Respondent to Complainant.