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Generic Top Level Domain Name (gTLD) Decisions |
Aha! - Agentur Fur Handelsmarketing GMBH
v. Continue Software GmbH
Claim Number: FA0204000109376
The
Complainant is Aha! - Agentur fur
Handelsmarketing GmbH, Koln, GERMANY (“Complainant”) represented by Dr. Bernard Skorpil. The Respondent is Continue Software GmbH, Wuerselen, GERMANY (“Respondent”).
The
domain name at issue is <aha.biz>,
registered with CORE.
The
undersigned certifies that she has acted independently and impartially and to
the best of her knowledge, has no known conflict
in serving as Panelist in this
proceeding.
Sandra
Franklin 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 9, 2002; the Forum
received a hard copy of the Complaint on
April 10, 2002.
On
April 10, 2002, a Notification of Complaint and Commencement of Administrative
Proceeding (the “Commencement Notification”), setting
a deadline of April 30,
2001 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 May 14, 2002, pursuant to STOP Rule 6(b), the Forum
appointed Sandra Franklin 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
The
<aha.biz> domain name is identical to Complainant's AHA! mark.
Respondent
has no rights or legitimate interests in the <aha.biz> domain
name.
Respondent
registered the <aha.biz> domain name in bad faith.
B.
Respondent
Respondent
failed to submit a Response.
Complainant began using the AHA! mark in
the early 1990’s in relation to retail marketing. Complainant registered the mark with the court of the city of
Cologne as Registration Number HRB Köln 24166 in 1993.
Respondent registered the disputed domain
name on March 27, 2002. Complainant has
presented evidence that Respondent has attempted to lease the domain name.
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,
through continuous use and registration in Germany has established that it has
rights in the AHA! mark. The AHA! mark
is identical to the <aha.biz> domain name. Therefore, the Panel finds that STOP 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”).
Complainant has established that it has
rights in the AHA! mark because it has used the mark continuously in commerce
since 1993 and
has registered the mark in Germany. Respondent has not come forward to offer evidence that it owns
any trademarks, service marks, or common law rights in the AHA! mark,
and
therefore has not demonstrated any rights in <aha.biz> under STOP
Policy ¶ 4(c)(i). See Nat’l
Acad. Of Recording Arts & Sci Inc. v. Lsites, FA 103059 (Nat. Arb.
Forum Feb. 11, 2002) (finding that because Respondent had not come forward the
Panel could infer that it had
no trademark or service marks identical to
<grammy.biz> and therefore had no rights or legitimate interests in the
domain name).
Respondent has failed to come forward and
present evidence that it plans to use the <aha.biz> domain name in
relation to a bona fide offering of goods and services in relation to business
interests it may have under the
AHA! mark.
Without this information the Panel cannot find that Respondent will use the
<aha.biz> domain name for a bona fide offering of goods or
services pursuant to STOP Policy ¶ 4(c)(ii).
See Woolworths plc. v.
Anderson, D2000-1113 (WIPO Oct. 10, 2000) (finding that, absent evidence of
preparation to use the domain name for a legitimate purpose, the
burden of
proof lies with the Respondent to demonstrate that it has rights or legitimate
interests); see also Gene Logic Inc. v. Bock, FA 103042 (Nat.
Arb. Forum March 4, 2002) (finding that, in order to show rights or legitimate
interests in the disputed domain
name, Respondent must establish with valid
evidence “a course of business under the name, or at least significant
preparation for
use of the name prior to learning of the possibility of a
conflict” with an IP Claimant).
There is no evidence on the record, and
Respondent has not come forward to establish that it is commonly known by the
<aha.biz> domain name pursuant to STOP Policy ¶ 4(c)(iii). See Great S. Wood Pres., Inc. v. TFA
Assocs., FA 95169 (Nat. Arb.
Forum Aug. 5, 2000) (finding that Respondent was not commonly known by the
domain name <greatsouthernwood.com>
where Respondent linked the domain
name to <bestoftheweb.com>); see also Gallup Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan.
23, 2001) (finding that Respondent does not have rights in domain name when
Respondent is not known
by the mark).
The Panel finds that STOP Policy ¶
4(a)(ii) has been satisfied.
Complainant has presented evidence that Respondent
is attempting to sell or lease the disputed domain name. It can be inferred, from the apparent
willingness of Respondent to sell or lease the domain name from the onset, that
<aha.biz> was registered primarily for the purpose of selling or renting
it. This is evidence of bad faith
registration pursuant to STOP Policy ¶ 4(b)(i). See Wembley Nat’l
Stadium Ltd. v. Thomson, D2000-1233 (WIPO Nov. 16, 2000) (finding bad faith
based on the apparent willingness of the Respondent to sell the domain name in
issue from the outset, albeit not at a price reflecting only the costs of
registering and maintaining the name); see also American Anti-Vivisection Soc’y v.
“Infa dot Net” Web Serv., FA
95685 (Nat. Arb. Forum Nov. 6, 2000) (finding that “general offers to sell the
domain name, even if no certain price is demanded,
are evidence of bad faith”).
Respondent was given notice by the
registry, before registering the disputed domain name that an IP claim had been
filed in relation
to the AHA! mark and <aha.biz>; therefore
Respondent was on notice, when it registered <aha.biz> that
Complainant had rights in the AHA! mark and its corresponding domain name. Respondent’s knowledge of Complainant’s
rights precluded it from registering the disputed domain name in good
faith. See Samsonite Corp. v. Colony Holding, FA 94313 (Nat. Arb. Forum Apr.
17, 2000) (evidence of bad faith includes actual or constructive knowledge of
commonly known mark
at the time of registration).
The Panel finds that STOP Policy ¶ 4(a)(iii)
has been satisfied.
Having
established all three elements required under the Start-up Trademark Opposition
Policy, the Panel concludes that relief shall
be hereby granted.
Accordingly, it is Ordered that the
domain name <aha.biz> be transferred from Respondent to
Complainant and subsequent challenges under the STOP Policy against this domain
name shall not be permitted.
Sandra Franklin, Panelist
Dated: May 24, 2002
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