START-UP TRADEMARK OPPOSITION POLICY

DECISION

Start A Business.com Inc. v. Krut Wayne

Claim Number: FA0204000109708

PARTIES

Complainant is Start A Business.com Inc., Tappan, NY (“Complainant”) represented by Patrick J. O’Neill.  Respondent is Krut Wayne, Dunwoody, GA (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME 

The domain name at issue is <startabusiness.biz>, registered with Key-Systems GMBH.

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.

James A. Crary 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 15, 2002; the Forum received a hard copy of the Complaint on May 22, 2002.

On June 18, 2002, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of July 8, 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 25, 2002, pursuant to STOP Rule 6(b), the Forum appointed James A. Crary 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 <startabusiness.biz> domain name is identical to Complainant’s mark.

Respondent has no “tradnames or rights” which grants it superior rights in the <startabusiness.biz> domain name.

Respondent registered the <startabusiness.biz> domain name “purely as a speculative venture.”

B. Respondent

Respondent failed to submit a Response in this proceeding.

FINDINGS

Complainant has pending trademark applications with the United States Patent and Trademark Office (“USPTO”) for the START A BUSINESS.COM mark and $TART-A-BUSINESS.COM stylized mark.  Complainant claims to have become well-known in the business world with the name Start a Business.com, Inc. 

Complainant claims to have “two Trademark actions pending with the [USPTO] for the use of the phrase ‘Start a Business.’”  Also, Complainant claims to have been using the phrase “Start a Business” in connection with its Internet start-up business services since 1998.  However, Complainant does not provide any substantiating evidence that proves use of the phrase “Start a Business” in connection with its services.  Complainant only provides evidence of its website where it consistently uses the START A BUSINESS.COM mark only.  Furthermore, Complainant has not provided any evidence of trademark applications for the “Start a Business” phrase; Complainant only provides evidence of trademark applications for the START A BUSINESS.COM mark and $TART-A-BUSINESS.COM stylized mark.

Respondent registered the <startabusiness.biz> domain name on March 27, 2002.

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 established rights in the START A BUSINESS.COM mark through use in commerce for its Internet start-up business services.  Also, Complainant has shown its interests in the START A BUSINESS.COM mark by applying for federal trademark protection with the USPTO. 

Complainant is inconsistent when describing its use of the phrase “Start a Business.”  Complainant claims to use the phrase “Start a Business” as the identifying phrase for its services; yet, Complainant states that “it has become well-known in the business world [as] Start a Business.com, Inc.”  Furthermore, Complainant’s website located at <start-a-business.com> consistently uses the START A BUSINESS.COM mark and not the phrase “Start a Business.”  Moreover, Complainant claims to have pending trademark applications for “Start a Business.”  Complainant, however, only provides evidence for the trademark applications related to the START A BUSINESS.COM mark. 

Nevertheless, it has been found that proof of a mark identical to the subject domain name, but for the mark’s “.com” suffix, is enough to satisfy the STOP Policy ¶ 4(a)(i) standing threshold.  Therefore, because the standing issue is not determinative of the outcome, the Panel presumes Complainant has sufficient rights in the START A BUSINESS.COM mark to surpass the standing threshold.  See Defensive Driver Online Ltd. V. Marco Publ’g Corp., FA 112435 (Nat. Arb. Forum July 9, 2002) (finding Complainant’s DEFENSIVEDRIVING.COM mark identical to Respondent’s <defensivedriving.biz> domain name for purpose of resolving domain name disputes).

Accordingly, the Panel finds that Complainant has satisfied the requirements of STOP Policy ¶ 4(a)(i).

Rights and Legitimate Interests

Complainant failed to assert that Respondent has no rights or legitimate interests in the <startabusiness.biz> domain name.  Complainant merely stated that “Respondent does not own any tradenames or rights which would give superior right to use of the domain name.”  Complainant also failed to provide any evidence to support this assertion.  Hence, a finding that Respondent has no rights or legitimate interests in the domain name in not warranted. 

Bad Faith Registration Or Use

Complainant also failed to sufficiently establish bad faith registration or use by Respondent.  Complainant simply noted that “Respondent has registered the domain name purely as a speculative venture.”  Complainant did not support this claim with any evidence proving that the “speculative venture” represented bad faith.  Therefore, no bad faith registration or use by Respondent can be found.

DECISION

Complainant has failed to establish multiple elements required in a STOP Complaint.  Therefore, the Complainant shall be DISMISSED.

Accordingly, the requested relief to transfer the <startabusiness.biz> domain name is DENIED.  There are no further challenges pending against this domain name under the STOP Policy.

                 

James A. Crary, Panelist

Dated: July 31. 2002

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