START-UP TRADEMARK OPPOSITION POLICY

DECISION

Kingfisher International P/L v. Streaker Promotions

Claim Number: FA0204000110796

PARTIES

Complainant is Kingfisher International P/L, Scoresby, AUSTRALIA (“Complainant”) represented by Manzur Isa.  Respondent is Streaker Promotions, Suffolk, UK (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME 

The domain name at issue is <kingfisher.biz>, registered with Easyspace Ltd.

PANEL

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.

The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.

PROCEDURAL HISTORY

Complainant has standing to file a Start-up Trademark Opposition Policy (“STOP”) Complaint, as it timely filed the required Intellectual Property (IP) Claim Form with the Registry Operator, NeuLevel.  As an IP Claimant, Complainant timely noted its intent to file a STOP Complaint against Respondent with the Registry Operator, NeuLevel and with the National Arbitration Forum (the “Forum”).

Complainant submitted a Complaint to the Forum electronically on April 23, 2002; the Forum received a hard copy of the Complaint on April 24, 2002.

On May 13, 2002, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of June 3, 2002 by which Respondent could file a Response to the Complaint, was transmitted to Respondent in compliance with paragraph 2(a) of the Rules for the Start-up Trademark Opposition Policy (the “STOP Rules”).

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 July 8, 2002, pursuant to STOP Rule 6(b), the Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) as the single 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 STOP Rules.  Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the STOP Policy, STOP Rules, the Forum’s STOP Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any Response from Respondent.

RELIEF SOUGHT

Transfer of the domain name from Respondent to Complainant.

PARTIES’ CONTENTIONS

A. Complainant

The <kingfisher.biz> domain name is identical to Complainant's KINGFISHER mark.

Respondent has no rights or legitimate interests in the <kingfisher.biz> domain name.

Respondent registered the <kingfisher.biz> domain name in bad faith.

B. Respondent

Respondent has failed to submit a Response.

FINDINGS

Complainant claims to hold an Australian trademark registration for KINGFISHER in relation to the design, manufacture, and re-sale of fibre optic communications equipment.  Complainant claims to have first begun to use this mark in commerce in 1986.

Respondent registered the disputed domain name on March 27, 2002.  Complainant’s investigation has revealed no evidence establishing that Respondent does business under the KINGFISHER mark, or that Respondent owns any trademark or service mark registrations for KINGFISHER.

Complainant asserts that it has an Australian Trademark, however it does not supply a registration number or proof of this registration.  Furthermore, the Complaint lacks content and no evidence or assertions of Respondent’s bad faith.

 

DISCUSSION

Paragraph 15(a) of the STOP 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 STOP Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the STOP Rules.

Paragraph 4(a) of the STOP Policy requires that the Complainant must prove each of the following three elements to obtain an order that a domain name should be transferred:

(1) the domain name is identical to a trademark or service mark in which the Complainant has rights; and

(2) the Respondent has no rights or legitimate interests in respect of the domain name; and

(3) the domain name has been registered or is being used in bad faith.

Due to the common authority of the ICANN policy governing both the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and these STOP proceedings, the Panel will exercise its discretion to rely on relevant UDRP precedent where applicable.

Under the STOP proceedings, a STOP Complaint may only be filed when the domain name in dispute is identical to a trademark or service mark for which a Complainant has registered an Intellectual Property (IP) claim form.  Therefore, every STOP proceeding necessarily involves a disputed domain name that is identical to a trademark or service mark in which a Complainant asserts rights.  The existence of the “.biz” generic top-level domain (gTLD) in the disputed domain name is not a factor for purposes of determining that a disputed domain name is not identical to the mark in which the Complainant asserts rights.

Complainant’s Rights in the Mark

Complainant has failed to establish that it has rights to the KINGFISHER mark through trademark registration or common law.  Complainant claims to have an Australian trademark for KINGFISHER; however Complainant has failed to submit any documentary proof of the claimed trademark. See Surf Control PLC v. Multiview Solutions Attn. Dr. M. Krever, AF-0513 (eResolution Dec 21, 2000) (documentary proof of trademark or service mark registration or common law use required to establish rights in mark). 

The Panel finds that STOP Policy ¶ 4(a)(i) has not been satisfied.

Rights or Legitimate Interests

Respondent has failed to come forward with a Response and therefore it is presumed that Respondent has not demonstrated rights or legitimate interests in the disputed domain name.  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).

Furthermore, when Respondent fails to submit a Response the Panel is permitted to make all inferences in favor of Complainant.  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”).

Respondent has not come forward, and there is no evidence on the record to establish that Respondent owns a trademark or service mark for KINGFISHER.  Therefore, Respondent has not established that it has rights or legitimate interests in the disputed domain name pursuant to STOP Policy ¶ 4(c)(i).  See Nat’l Acad. Of Recording Arts & Sci Inc. v. Lsites, FA 103059 (Nat. Arb. Forum Feb. 11, 2002) (finding that, because Respondent did not come forward with a Response, the Panel could infer that it had no trademark or service marks identical to <grammy.biz> and therefore had no rights or legitimate interests in the domain name).

There is no evidence on record that Respondent is commonly known by any other name than Streaker Promotions.  Therefore, Respondent has not established that it is commonly known as KINGFISHER or <kingfisher.biz>, and has no rights or legitimate interests in the disputed domain name pursuant to STOP Policy ¶ 4(c)(iii).  See Gallup Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that Respondent does not have rights in domain name when Respondent is not known by the mark); see also 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).

The Panel finds that Respondent does not have a protectable interest in the domain name and that STOP Policy ¶ 4(a)(ii) has been satisfied.

Registration or Use in Bad Faith

Complainant offers no evidence of Respondent’s bad faith; therefore the Panel finds that STOP Policy ¶ 4(a)(iii) has not been satisfied.

DECISION

Having failed to establish two of the three elements required under the Start-up Trademark Opposition Policy, the Panel concludes that relief shall be hereby denied and the Complaint is dismissed.  Subsequent challenges under the STOP Policy against the domain name <kingfisher.biz> shall be permitted.

The Honorable Charles K. McCotter, Jr. (Ret.), Panelist

Dated: July 13, 2002

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