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Generic Top Level Domain Name (gTLD) Decisions |
E & L Corp. d/b/a Cameta Camera v.
IPresident.org
Claim Number: FA0206000114522
PARTIES
Complainant
is E & L Corp. d/b/a Cameta Camera,
Amityville, NY (“Complainant”).
Respondent is IPresident.org,
East Meadow, NY (“Respondent”).
REGISTRAR AND DISPUTED DOMAIN NAME
The
domain name at issue is <cametcamera.com>,
registered with Intercosmos Media Group,
Inc.
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.
Tyrus
R. Atkinson, Jr., as Panelist.
PROCEDURAL HISTORY
Complainant
submitted a Complaint to the National Arbitration Forum (the “Forum”)
electronically on June 7, 2002; the Forum received
a hard copy of the Complaint
on June 12, 2002.
On
June 10, 2002, Intercosmos Media Group, Inc. confirmed by e-mail to the Forum
that the domain name <cametcamera.com>
is registered with Intercosmos Media Group, Inc. and that Respondent is the
current registrant of the name. Intercosmos
Media Group, Inc. has verified that Respondent is bound by the Intercosmos
Media Group, Inc. 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
June 19, 2002, a Notification of Complaint and Commencement of Administrative
Proceeding (the “Commencement Notification”), setting
a deadline of July 9,
2002 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@cametcamera.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
July 15, 2002, pursuant to Complainant’s request to have the dispute decided by
a single-member Panel, the Forum appointed Tyrus
R. Atkinson, Jr., 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.
RELIEF SOUGHT
Complainant
requests that the domain name be transferred from Respondent to Complainant.
PARTIES’ CONTENTIONS
A.
Complainant
The
<cametacamera.com> domain name is identical to Complainant's
CAMETA CAMERA mark.
Respondent
has no rights or legitimate interests in the disputed domain name.
Respondent
registered and used the disputed domain name in bad faith.
B.
Respondent
Respondent
failed to submit a Response.
FINDINGS
Complainant filed for a trademark with
the United States Patent and Trademark Office in December 2000 for CAMETA
CAMERA in relation
to photographic film development, retail store services,
mail order services, and electronic retail store services. Complainant’s application for a trademark
for CAMETA CAMERA was registered on March 19, 2002 as Registration Number
2,549,646. Complainant has used the
CAMETA CAMERA mark in relation to its goods and services continuously since
1983.
In May 2001, Complainant found that <cametacamera.com>
was registered by their competitor Vaughn Smith Camera, and the domain name was
redirecting Internet traffic to <vaughnsmithcamera.com>. Complainant contacted Vaughn Smith Camera
and they agreed to redirect <cametacamera.com> to Complainant’s
website. When it came time to renew the
registration on the disputed domain name Complainant received no notice from
Vaughn Smith Camera or
the registrar.
By mid-August 2001 Complainant found out that the <cametacamera.com>
domain name had been registered by Respondent.
Respondent has not developed the disputed
domain name, and it currently displays a
DirectNIC “coming soon” page.
Respondent’s WHOIS information initially advertised that the domain name
was for sale by stating “this domain name is for sale.” Respondent has since removed this announcement,
after receiving correspondence from Complainant’s attorneys regarding this
dispute.
DISCUSSION
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 and
draw such inferences it considers appropriate
pursuant to paragraph 14(b) 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; and
(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.
Identical and/or Confusingly Similar
Complainant has established through
continuous use and registration with the United States Patent and Trademark
Office that it has
rights in the CAMETA CAMERA mark. Furthermore, the <cametacamera.com> domain name is
identical to Complainant’s CAMETA CAMERA mark because spaces between words are
not allowed in domain names, and
the addition of a generic top-level domain
name such as “.com” is insignificant when determining whether a domain name is
identical. See Pomellato S.p.A v. Tonetti, D2000-0493
(WIPO July 7, 2000) (finding <pomellato.com> identical to Complainant’s
mark because the generic top-level domain
(gTLD) “.com” after the name
POMELLATO is not relevant); see also Fed’n of Gay Games, Inc. v. Hodgson & Scanlon, D2000-0432 (WIPO June 28, 2000) (finding that
the domain name <gaygames.com> is identical to Complainant's registered
trademark
GAY GAMES).
The Panel finds
that Policy ¶ 4(a)(i) has been satisfied.
Respondent has failed to come forward
with a Response and therefore it is presumed that Respondent has no 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”).
There is no evidence, and Respondent does
not proffer evidence, that Respondent has rights or legitimate interests in
respect to the
disputed domain name. See Body Shop Int’l PLC v. CPIC NET &
Hussain, D2000-1214 (WIPO Nov. 26, 2000) (finding “that on the evidence
provided by the Complainant and in the absence of any submissions
from the
Respondents, that the Complainant has established that (i) the Respondents are
not using and have not used, or are not demonstrating
and have not
demonstrated, an intent to use the said domain name in connection with a bona
fide offering of goods or services; (ii)
the Respondents are not and have not
been commonly known by the said domain name; and (iii) the Respondents are not
making legitimate
noncommercial or fair use of the said domain name, without intending
to mislead and divert consumers or to tarnish Complainant’s
THE BODY SHOP
trademark and service mark”).
Furthermore, Respondent has failed to
establish a website at the disputed domain name even though it has owned <cametacamera.com>
for over a year. Respondent's passive
holding of the domain name demonstrates a lack of rights and legitimate
interests. See Ziegenfelder Co. v. VMH Enter., Inc.,
D2000-0039 (WIPO Mar. 14, 2000) (finding that failure to provide a product or
service or develop the site demonstrates that Respondents
have not established
any rights or legitimate interests in said domain name); see also Bloomberg L.P. v. Sandhu, FA 96261
(Nat. Arb. Forum Feb. 12, 2001) (finding that no rights or legitimate interest
can be found when Respondent fails to use
disputed domain names in any way).
There is no evidence on the record, and
Respondent has not come forward to establish that it is commonly known by the
<cametacamera.com> domain name pursuant to Policy ¶ 4(c)(ii). 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 CBS Broad, Inc. v. LA-Twilight-Zone, D2000-0397 (WIPO June 19,
2000) (finding that Respondent has failed to demonstrate any rights or
legitimate interests in the <twilight-zone.net>
domain name since
Complainant had been using the TWILIGHT ZONE mark since 1959).
Respondent registered the disputed domain name after the registration, operated for the
benefit of Complainant, expired. It can
be inferred that the Respondent had knowledge that the disputed domain name
previously had been operated for the benefit of
the Complainant, and therefore
that Internet user confusion would result from Respondent's use. Therefore, Respondent is not using the
disputed domain name in relation to a legitimate noncommercial or fair use pursuant
to Policy
¶ 4(c)(iii). See Am. Anti-Vivisection Soc’y v. “Infa dot Net” Web
Serv., FA 95685 (Nat. Arb. Forum Nov. 6, 2000) (finding that Complainant’s
prior registration of the same domain name is a factor in considering
Respondent’s rights or legitimate interest in the domain name); see also
Caterpillar
Inc. v. Quin, D2000-0314
(WIPO June 12, 2000) (finding that Respondent does not have a legitimate
interest in using the domain names <caterpillarparts.com>
and
<caterpillarspares.com> to suggest a connection or relationship, which
does not exist, with Complainant's mark CATERPILLAR).
The Panel finds that Policy ¶ 4(a)(ii)
has been satisfied.
Registration and Use in Bad Faith
Respondent's registration and passive
holding of the <cametacamera.com> domain name supports a finding
of bad faith registration and use pursuant to Policy ¶ 4(a)(iii). 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).
Based on Respondent’s original WHOIS
information advertising the domain name for sale, it can be inferred that
Respondent registered
the disputed domain in order to sell it. Registration of a domain name with the
primary intent to sell, rent or transfer the domain name is evidence of bad
faith registration
and use pursuant to Policy ¶ 4(b)(i). See
Am. Online, Inc. v. Avrasya Yayincilik Danismanlik Ltd., FA 93679 (Nat.
Arb. Forum Mar. 16, 2000) (finding bad faith where Respondent offered domain
names for sale); see also Microsoft
Corp. v. Mehrotra, D2000-0053 (WIPO Apr. 10, 2000) (finding bad faith where
that Respondent registered the domain name for the purpose of selling it,
as
revealed by the name the Respondent chose for the registrant, “If you want this
domain name, please contact me”); see also Euromarket Designs, Inc. v. Domain For Sale VMI, D2000-1195 (WIPO
Oct. 26, 2000) (finding “the manner in which the Respondent chose to identify
itself and its administrative and
billing contacts both conceals its identity
and unmistakably conveys its intention, from the date of the registration, to
sell rather
than make any use of the disputed domain name”).
The Panel finds that Policy ¶ 4(a)(iii)
has been satisfied.
DECISION
Having established all three elements
required under the ICANN Policy, the Panel concludes that the requested relief
shall be hereby
granted.
Accordingly, it is Ordered that the
domain name <cametacamera.com> be transferred from
Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated: July 29, 2002
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