DECISION

Union Telephone Company v. IdeaTrade - This Domain is For Sale -

Claim Number: FA0201000103816

PARTIES

Complainant is Michael Johnson Union Telephone Company, Mountain View, WY (“Complainant”).  Respondent is IdeaTrade - This Domain is For Sale -, Montgomery, TX (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME 

The domain name at issue is <unioncellular.com>, registered with Network Solutions, Inc.

PANEL

The undersigned certifies that she has acted independently and impartially and that to the best of her knowledge, she has no known conflict in serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on January 11, 2002; the Forum received a hard copy of the Complaint on January 28, 2002.

On January 15, 2002, Network Solutions, Inc. confirmed by e-mail to the Forum that the domain name <unioncellular.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. 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 January 29, 2002, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of February 18, 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@unioncellular.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 February 22, 2002, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Carolyn Marks Johnson 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 makes the following allegations:

Complainant has rights in a mark that is contained in a domain name registered by Respondent.  Respondent’s <unioncellular.com> domain name is confusingly similar to Complainant’s UNION mark.  Respondent has no rights to or legitimate interests in the disputed domain name.  Respondent registered the disputed domain name in bad faith.

B. Respondent did not file a Response in this proceeding.

FINDINGS

Complainant has provided cellular service in the Wyoming western region since 1990. Additionally, it owns the following domain name to advertise and promote its cellular telephone services: <unioncellular.net>, <unioncellular.org>, < unioncellular.tv>, <unioncellular.ws>, <unioncellular.cc>, < unioncellular.biz> and <unioncellular.info>.

Respondent registered the <unioncellular.com> domain name on September 27, 1999 and has subsequently used it as a website to provide pronographic and sexually explicit photographs and services.

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 Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and

(2) 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 to and/or Confusingly Similar

Complainant asserts that it has established common law rights in the UNION name through its extensive advertisement and promotion on the Internet, as well as its offering of telephone services under the UNION name, including cellular telephone services, since 1990.

The Panel may find that Respondent’s <unioncellular.com> domain name is confusingly similar to Complainant’s UNION mark because the domain name includes Complainant’s mark in its entirety and adds a descriptive term that connotes the very services Complainant provides under that name.  See Parfums Christian Dior v. 1 Netpower, Inc., D2000-0022 (WIPO Mar. 3, 2000) (finding that four domain names that added the descriptive words "fashion" or "cosmetics" after the trademark were confusingly similar to the trademark); see also Arthur Guinness Son & Co. (Dublin) Ltd.  v. Healy/BOSTH, D2001-0026 (WIPO Mar. 23, 2001) (finding confusing similarity where the domain name in dispute contains the identical mark of the Complainant combined with a generic word or term); see also Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar).

            Accordingly, the Panel finds that Policy ¶ 4(a)(i) has been satisfied.

Rights to or Legitimate Interests

Because Respondent did not file a Response in this proceeding, the Panel may conclude 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).

The Panel may also find under this record that Respondent used a confusingly similar domain name to take advantage of the confusion that would result for users of the Internet as to the association or sponsorship of Respondent’s website by Complainant’s business.  This is not a bona fide offering of goods pursuant to Policy ¶ 4(c)(i).  See Toronto-Dominion Bank v. Karpachev, D2000-1571 (WIPO Jan. 15, 2001) (finding no rights or legitimate interests where Respondent diverted Complainant’s customers to his websites); see also Vapor Blast Mfg. Co. v. R & S Tech., Inc., FA 96577 (Nat. Arb. Forum Feb. 27, 2001) (finding that Respondent’s commercial use of the domain name to confuse and divert Internet traffic is not a legitimate use of the domain name).

Moreover, Respondent, known as “IdeaTrade-This Domain is For Sale-,” has not provided any evidence that it is commonly known by the “union” mark or by the same name contained within the domain name in dispute, “unioncellular.com.”  As a result, the Panel may make all inferences in favor of Complainant. Respondent is not commonly known by the disputed domain name and Respondent has shown no rights to or legitimate interests in the domain at issue pursuant to Policy ¶ 4(c)(ii).  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”); see also Hartford Fire Ins. Co. v. Webdeal.com, Inc., FA 95162 (Nat. Arb. Forum Aug. 29, 2000) (finding that Respondent has no rights or legitimate interests in domain names because it is not commonly known by Complainant’s marks and Respondent has not used the domain names in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use).

Finally, Respondent does not have rights to or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)(iii) because Respondent makes use of a confusingly similar domain name as a website to advertise pornographic pictures and services. This is not a legitimate noncommercial or fair use.  See Nat’l Football League Prop., Inc., v. One Sex Entm't. Co., D2000-0118 (WIPO Apr. 17, 2000) (finding that the Respondent has no rights or legitimate interests in the domain names <chargergirls.com> and <chargergirls.net> where the Respondent linked these domain names to its pornographic website); see also Brown & Bigelow, Inc. v. Rodela, FA 96466 (Nat. Arb. Forum Mar. 5, 2001) (finding that infringing on another's well-known mark to provide a link to a pornographic site is not a legitimate or fair use).

           Accordingly, the Panel finds that Policy ¶ 4(a)(ii) has been satisfied.

Registration and Use in Bad Faith

Complainant alleges that Respondent registered and used the disputed domain name in bad faith.  Respondent’s use of the confusingly similar domain name supports a finding of bad faith here because Respondent linked the infringing domain name here to a pornographic site.  See Brown & Bigelow, Inc. v. Rodela, FA 96466 (Nat. Arb. Forum Mar. 5, 2001) (use of another's well-known mark to provide a link to a pornographic site is evidence of bad faith registration and use).

Furthermore, it can be inferred from Respondent’s “IdeaTrade-This Domain is For Sale-” Whois Registration name that Respondent registered the disputed domain name primarily for the purpose of selling it.  Such use also permits the finding of  bad faith registration pursuant to Policy ¶ 4(b)(i).  See Little Six, Inc v. Domain For Sale, FA 96967 (Nat. Arb. Forum Apr. 30, 2001) (finding Respondent's offer to sell the domain name at issue to Complainant was evidence of bad faith); see also Educational Testing Serv. v. TOEFL, D2000-0044 (WIPO Mar. 16, 2000) (finding that a general offer of sale combined with no legitimate use of the domain name constitutes registration and use in bad faith).

            Accordingly, 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 should be hereby granted.

Accordingly, it is Ordered that the <unioncellular.com> domain name be transferred from Respondent to Complainant.

                                                                                    Hon. Carolyn Marks Johnson, Panelist

Dated: March 8, 2002.

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