Generic Top Level Domain Name (gTLD) Decisions

Complainant is Glimcher Properties Limited Partnership, Columbus, OH, USA ("Complainant") represented by Randolph W. Alden, of Alden, Taylor & Durkin, LLC. Respondent is NetPlus Comminications, Inc., New Lexington, OH, USA ("Respondent").

The domain name at issue is "indianmoundmall.com" 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.

John J. Upchurch as Panelist.

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on April 9, 2001; the Forum received a hard copy of the Complaint on April 11, 2001.

On April 12, 2001, Network Solutions, Inc. confirmed by e-mail to the Forum that the domain name "indianmoundmall.com" is 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 April 12, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of May 2, 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@indianmoundmall.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 May 11, 2001, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed John J. Upchurch 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 name be transferred from the Respondent to the Complainant.

B. Respondent has not submitted a response in this matter.

Complainant, Glimcher Properties Ltd., owns the common law mark INDIAN MOUND MALL, which it has used continuously since 1994 in connection with its retail shopping mall. Complainant also maintains a trademark registration for its INDIAN MOUND MALL mark with the Ohio Secretary of State.

Respondent, NetPlus Communications, Inc., registered the disputed domain name July of 1998. Respondent currently maintains 49 domain name registrations, many of which are dormant. To date, Respondent has not used the disputed domain name for any purpose.

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.

Under the Policy, Complainant must demonstrate that it has rights in the mark, and that the disputed domain name is identical or confusingly similar to that mark.

Here, Complainant’s rights are evidenced by its common law mark INDIAN MOUND MALL. See Winterson v. Hogarth, D2000-0235 (WIPO May 22, 2000) (finding that ICANN Policy does not require that the Complainant have rights in a registered trademark and that it is sufficient to show common law rights); see also Smart Design LLC v. Carolyn Hughes, D2000-0993 (WIPO Oct. 18, 2000) (holding that ICANN Policy 4(a)(i) does not require Complainant to demonstrate ‘exclusive rights,’ but only that complainant has a bona fide basis for making the complaint in the first place).

The Panel finds that Respondent’s domain name, indianmoundmall.com, is identical to Complainant’s well-established mark. See Dr. Karl Albrecht v. Eric Natale, FA 95465 (Nat. Arb. Forum Sept. 16, 2000) (Finding Respondent’s domain name, karlalbrecht.com, identical to Complainant’s common law mark); see also Football Ass’n Ltd. v. UKIP, D2000-1359 (WIPO Dec. 15, 2000) (finding that domain name "facup.com" is clearly identical to the FA CUP trademark belonging to Complainant).

In addition, the disputed domain name is so confusingly similar, reasonable Internet users would assume that the domain name is somehow associated with Complainant’s mark. See Surface Protection Indus., Inc. v. The Webposters, D2000-1613 (WIPO Feb. 5, 2001) (finding the domain name confusingly similar "so as to likely confuse Internet users who may believe that are doing business with Complainant or with an entity whose services are endorsed by, sponsored by, or affiliated with Complainant; hence, satisfying the confusing similarity requirement"); see also Perot Sys. Corp. v. Perot.net, FA 95312 (Nat. Arb. Forum Aug. 29, 2000) (finding that given the similarity of the Complainant’s marks with the domain name, consumers will presume the domain name is affiliated with the Complainant).

Thus, Policy ¶ 4(a)(i) has been satisfied.

The Panel finds that Respondent has no rights or legitimate interests in the disputed domain name because Respondent is not commonly known by the domain name, nor has Respondent used the domain name in connection with a legitimate noncommercial or fair use. See Broadcom Corp. v Intellifone Corp., FA 96356 (Nat. Arb. Forum Feb. 5, 2001) (finding no rights or legitimate interests because Respondent is not commonly known by the disputed domain name or using the domain name in connection with a legitimate or fair use); see also Adamovske Strojirny v Tatu Rautiainen, D2000-1394 (WIPO Dec. 20, 2000) (finding that Respondent has no rights or legitimate interests in the domain name where Respondent is not commonly known by the distinct ADAST mark and has made no use of the domain name in question).

Moreover, Respondent asserted no rights or legitimate interests in the disputed domain name, which entitles the Panel to conclude Respondent has no such rights or legitimate interests in the domain name at issue. 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"); see also Canadian Imperial Bank of Commerce v. D3M Virtual Reality Inc. and D3M Domain Sales, AF-0336 (eResolution Sept. 23, 2000) (finding no rights or legitimate interest where no such right or interest is immediately apparent to the Panel and Respondent has not come forward to suggest any such right or interest that it may possess).

The Panel finds that Respondent has passively held the disputed domain name since its registration, which shows bad faith. See Alitalia –Linee Aeree Italiane S.p.A v. Colour Digital, D2000-1260 (WIPO Nov. 23, 2000) (finding bad faith where the Respondent made no use of the domain name in question and there are no other indications that the Respondent could have registered and used the domain name in question for any non-infringing purpose); see also DCI S.A. v. Link Commercial Corp. D2000-1232 (WIPO Dec. 7, 2000) (concluding that the Respondent’s passive holding of the domain name satisfies the requirement of paragraph 4(a)(iii) of the Policy).

Further, it appears Respondent registered the disputed domain name to intentionally attract Internet users to its web site, or other online location, via a likelihood of confusion with Complainant’s well-established mark. See Reuters Ltd. v. Global Net 2000, Inc., D2000-0441 (WIPO July 13, 2000) (finding bad faith where the Respondent attracted users to a web site sponsored by the Respondent and created confusion with the Complainant’s mark as to the source, sponsorship, or affiliation of that web site); see also Perot Sys. Corp. v. Perot.net, FA 95312 (Nat. Arb. Forum Aug. 29, 2000) (finding bad faith where the domain name in question is obviously connected with the Complainant’s well known marks, thus creating a likelihood of confusion strictly for commercial gain).

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

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