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Generic Top Level Domain Name (gTLD) Decisions |
Ravinder Singh v. Dalkia
Claim Number: FA0204000110864
Complainant
is Ravinder Singh, Skelmersdale,
UNITED KINGDOM (“Complainant”).
Respondent is Dalkia, Saint
Andre, FRANCE (“Respondent”).
The
domain name at issue is <commercial.biz>,
registered with Nameengine, 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.
Judge
Harold Kalina (Ret.) as Panelist.
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 26, 2002; the Forum
received a hard copy of the Complaint on
May 14, 2002.
On
May 20, 2002, a Notification of Complaint and Commencement of Administrative
Proceeding (the “Commencement Notification”), setting
a deadline of June 10,
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 9, 2002, pursuant to STOP Rule 6(b), the Forum
appointed Judge Harold Kalina (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.
Transfer
of the domain name from Respondent to Complainant.
A.
Complainant
Complainant
asserts to have a trademark that is identical to <commercial.biz>.
Complainant
asserts that Respondent has no rights or legitimate interests in <commercial.biz>.
Complainant
asserts that Respondent has registered the <commercial.biz> domain name in bad faith.
B.
Respondent
Respondent
failed to submit a Response.
Complainant asserts that it has a
“trademark or service mark” but fails to identify this trademark or service
mark. Furthermore, Complainant fails to
present any evidence that it has a business that provides goods or services
under this unidentified
mark.
Respondent registered the disputed domain
name <commercial.biz> on March
27, 2002.
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
asserts to have rights in a trademark or service mark identical to <commercial.biz>. However, Complainant never identifies this
trademark or service mark, nor does Complainant present any evidence of this
mark’s actual
existence. Furthermore,
Complainant fails to present any evidence of the secondary meaning this mark
has accrued in relation to Complainant’s
goods or services. As a result, the Panel cannot find that
Complainant has rights in the <commercial.biz>
domain name pursuant to STOP Policy ¶ 4(a)(i).
Because
Respondent failed to respond there is insufficient evidence to determine
whether Respondent has rights to the <commercial.biz>
under the STOP Policy.
Having failed to establish a necessary
element required under the Start-Up Trademark Opposition Policy, the Panel
concludes that relief
shall be hereby denied.
Accordingly, it is Ordered that the
Complaint be dismissed. There are no further challenges pending
against this domain name under the STOP Policy.
Judge Harold Kalina (Ret.),
Panelist
Dated: July 18, 2002
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URL: http://www.worldlii.org/int/other/GENDND/2002/1193.html