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Generic Top Level Domain Name (gTLD) Decisions |
Compaq
Information Technologies Group, L.P. v. Thomas Nye
Claim
Number: FA0202000104677
PARTIES
Complainant is Compaq Information Technologies Group,
L.P., Houston, TX (“Complainant”) represented by David M. Kelly, of Finnegan,
Henderson, Farabow, Garrett & Dunner, LLP. Respondent is Thomas Nye,
Conroe, TX (“Respondent”).
REGISTRAR
AND DISPUTED DOMAIN NAME
The domain name at
issue is <comqaq.com>,
registered with Go Daddy Software, 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.
The Honorable Charles
K. McCotter, Jr. (Ret.) as
Panelist.
PROCEDURAL
HISTORY
Complainant submitted
a Complaint to the National Arbitration Forum (the “Forum”) electronically on February
15, 2002; the Forum received
a hard copy of the Complaint on February 15, 2002.
On February 15, 2002, Go
Daddy Software, Inc. confirmed by e-mail to the Forum that the domain name <comqaq.com> is registered with Go
Daddy Software, Inc. and that Respondent is the current registrant of the
name. Go Daddy Software, Inc. has
verified that Respondent is bound by the Go Daddy Software, 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 February 18, 2002,
a Notification of Complaint and Commencement of Administrative Proceeding (the
“Commencement Notification”),
setting a deadline of March 11, 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@comqaq.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 March 18, 2002,
pursuant to Complainant’s request to have the dispute decided by a
single-member Panel, the Forum appointed The
Honorable Charles K. McCotter, Jr.
(Ret.) 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 the Respondent to the Complainant.
PARTIES’
CONTENTIONS
A. Complainant
Respondent’s <comqaq.com> domain name is confusingly similar to
Complainant’s COMPAQ mark.
Respondent does not have rights or legtimate interests in the disputed
domain name.
Respondent registered and used the disputed domain name in bad faith.
B. Respondent
No Response was
received.
FINDINGS
Complainant
has continuously used COMPAQ as a trade name and service mark since 1982. Complainant additionally owns registrations
for the COMPAQ mark in 100 countries, including the United States Federal Reg.
No. 1,467,066,
registered on December 1, 1987). Complainant also holds numerous federal registrations for similar
marks incorporating the word COMPAQ.
Complainant
is a global leader in the development and manufacturing of computer hardware,
software, and the provision of computing
and business solutions. Complainant’s products are currently sold in
over 200 countries. Complainant shipped
its one millionth personal computer in 1987 and became the largest global
supplier of personal computers in 1994.
Complainant ranked 27th on the Fortune 500 list for 2001 and
recorded over $22 billion in sales in 2001.
Complainant’s COMPAQ mark is valued at $14.6 billion, and due to its
global client base, advertising, and marketing, it is one of
the most famous
brand names in the world.
Complainant
also owns the domain name <compaq.com>, which it registered on April 20,
1995, and has used as a website promoting
its COMPAQ branded products and
services.
Respondent
registered the disputed domain name on August 23, 2001. Respondent used the domain to advertise
COMPAQ products as well as those of Complainant’s competitors-Sony and
Palm. It appeared from the website that
Internet users could purchase the goods of Complainant and its competitor, but
when users attempted
to do so an error message appeared. Respondent’s website also advertised its own
web design services as well as prominently displaying an offer to sell the
domain name,
“This domain is for sale!”
Respondent subsequently changed its website to advertise search engine
placement services. Respondent has also continuously used the
trade name
“Compaq Superstore” on its website, without license from Complainant.
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 legal rights to the
COMPAQ mark due to its many federal registrations of the mark.
The
Panel finds that Policy ¶ 4(a)(i) has been satisfied.
The Panel finds that
Policy ¶ 4(a)(ii) has been satisfied.
Respondent
had actual knowledge of the COMPAQ mark when it registered the disputed domain
name because Respondent initially used it
to advertise Complainant’s COMPAQ
products. This activity indicates Respondent’s bad faith registration and
use. See Samsonite Corp. v. Colony Holding, FA 94313 (Nat. Arb. Forum Apr.
17, 2000) (finding that evidence of bad faith includes actual or constructive
knowledge of a commonly
known mark at the time of registration).
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 <comqaq.com>
be transferred from Respondent
to Complainant.
The
Honorable Charles K. McCotter, Jr. (Ret.), Panelist
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URL: http://www.worldlii.org/int/other/GENDND/2002/435.html