DECISION

DataFlux Corporation v. VanDeCar Management Solutions c/o James VanDeCar

Claim Number: FA0309000196120

PARTIES

Complainant is DataFlux Corporation, Cary, NC (“Complainant”) represented by Maury M. Tepper of Womble Carlyle Sandridge & Rice, PLLC, 150 Fayetteville Street Mall, Suite 2100, Raleigh, NC  27602. Respondent is VanDeCar Management Solutions c/o James VanDeCar, 5800 Arborwood Drive, Apt. D, Columbus, OH 43229 (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <bluefusion.info> registered with Tucows.

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. Carmody, Esq.,  as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on September 16, 2003; the Forum received a hard copy of the Complaint on September 17, 2003.

On September 17, 2003, Tucows confirmed by e-mail to the Forum that the domain name <bluefusion.info> is registered with Tucows and that Respondent is the current registrant of the name. Tucows has verified that Respondent is bound by the Tucows 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 September 19, 2003, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of October 9, 2003 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@bluefusion.info 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 October 20, 2003, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed James A. Carmody, Esq., 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 assertions:

1. Respondent’s <bluefusion.info> domain name is identical to Complainant’s BLUE FUSION mark.

2. Respondent does not have any rights or legitimate interests in the <bluefusion.info> domain name.

3. Respondent registered and used the <bluefusion.info> domain name in bad faith.

B.  Respondent failed to submit a Response in this proceeding.

FINDINGS

Complainant has produced evidence of a trademark registration with the United States Patent and Trademark Office (“USPTO”) for the BLUE FUSION mark (Reg. No. 2,566,023 registered on April 30, 2002) related to computer software, for use with other software applications, which uses searching and heuristic techniques to find and recognize similar data patterns in databases and data sets. Complainant has been using the mark continuously and exclusively since at least June 30, 2000.

Respondent registered the <bluefusion.info> domain name on July 22, 2002. Respondent has made no apparent use of the disputed domain name since its registration.

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 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 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 and/or Confusingly Similar

Complainant has established rights in the BLUE FUSION mark pursuant to Policy ¶ 4(a)(i) through registration with the USPTO. See Men’s Wearhouse, Inc. v. Wick, FA 117861 (Nat. Arb. Forum Sept. 16, 2002) (“Under U.S. trademark law, registered marks hold a presumption that they are inherently distinctive and have acquired secondary meaning”).

Complainant argues that Respondent’s <bluefusion.info> domain name is identical to Complainant’s BLUE FUSION mark under Policy ¶ 4(a)(i) because the disputed domain name incorporates the entire mark and simply omits the space between the words and adds the generic top-level domain name (“gTLD”) “.info” to the end of the mark. Neither the omission of spaces between the words of the mark nor the addition of a gTLD sufficiently distinguish Respondent’s domain name from Complainant’s mark. See Busy Body, Inc. v. Fitness Outlet Inc., D2000-0127 (WIPO Apr. 22, 2000) (finding that "the addition of the generic top-level domain (gTLD) name ‘.com’ is . . . without legal significance since use of a gTLD is required of domain name registrants"); see also Hannover Ruckversicherungs-AG v. Ryu, FA 102724 (Nat. Arb. Forum Jan. 7, 2002) (finding <hannoverre.com> to be identical to HANNOVER RE, “as spaces are impermissible in domain names and a generic top-level domain such as ‘.com’ or ‘.net’ is required in domain names”).

The Panel finds that Complainant has established Policy ¶ 4(a)(i).

Rights or Legitimate Interests

Respondent failed to favor the Panel with a Response pursuant to this proceeding. Therefore, the Panel accepts all reasonable allegations and inferences in the Complaint as true. See Bayerische Motoren Werke AG v. Bavarian AG, FA110830 (Nat. Arb. Forum June 17, 2002) (finding that in the absence of a Response the Panel is free to make inferences from the very failure to respond and assign greater weight to certain circumstances than it might otherwise do); see also Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that Complainant’s allegations are true unless clearly contradicted by the evidence).

Moreover, based on Respondent’s failure to respond to the Complaint, the Panel presumes Respondent lacks any rights to or legitimate interests in the disputed domain name. See Canadian Imperial Bank of Commerce v. D3M Virtual Reality Inc., AF-0336 (eResolution Sept. 23, 2000) (finding no rights or legitimate interests where no such right or interest was immediately apparent to the Panel and Respondent did not come forward to suggest any right or interest it may have possessed); see also Geocities v. Geociites.com, D2000-0326 (WIPO June 19, 2000) (finding that Respondent has no rights or legitimate interests in the domain name because Respondent never submitted a Response or provided the Panel with evidence to suggest otherwise).

Respondent has made no apparent use of the <bluefusion.info> domain name since the domain name was registered on July 22, 2002. Respondent’s failure to develop a website at the disputed domain name for over 13 months suggests that Respondent has no rights to or legitimate interests in the domain name for purposes of Policy ¶ 4(a)(ii). See State Fair of Texas v. State Fair Guides, FA 95066 (Nat. Arb. Forum July 25, 2000) (finding that Respondent’s failure to develop the site demonstrates a lack of legitimate interest in the domain name); see also Vestel Elektronik Sanayi ve Ticaret AS v. Kahveci, D2000-1244 (WIPO Nov. 11, 2000) (“merely registering the domain name is not sufficient to establish rights or legitimate interests for purposes of paragraph 4(a)(ii) of the Policy”).

Furthermore, Respondent has produced no proof and the record is bereft of evidence indicating that Respondent is commonly known by BLUE FUSION or <bluefusion.info>. Accordingly, the Panel finds that Respondent has demonstrated no rights to or legitimate interests in the disputed domain name with regard to Policy ¶ 4(c)(ii). See RMO, Inc. v. Burbridge, FA 96949 (Nat. Arb. Forum May 16, 2001) (interpreting Policy ¶ 4(c)(ii) "to require a showing that one has been commonly known by the domain name prior to registration of the domain name to prevail"); see also Gallup Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that Respondent does not have rights in a domain name when Respondent is not known by the mark).

The Panel finds that Policy ¶ 4(a)(ii) has been established.

Registration and Use in Bad Faith

The Policy lists four circumstances that evidence bad faith registration and use of a domain name. However, this list is not meant to be exclusive. The Panel may look to the totality of the circumstances when determining whether a domain name has been registered and used in bad faith. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (“the examples [of bad faith] in Paragraph 4(b) are intended to be illustrative, rather than exclusive”); see also Twentieth Century Fox Film Corp. v. Risser, FA 93761 (Nat. Arb. Forum May 18, 2000) (finding that in determining if a domain name has been registered in bad faith, the Panel must look at the “totality of circumstances”).

Respondent has passively held the <bluefusion.info> domain name for over 13 months. The Panel finds that Respondent’s passive holding of the disputed domain name satisfies the requirement of bad faith registration and use under Policy ¶ 4(a)(iii). See Caravan Club v. Mrgsale, FA 95314 (Nat. Arb. Forum Aug. 30, 2000) (finding that Respondent made no use of the domain name or website that connects with the domain name, and that passive holding of a domain name permits an inference of registration and use in bad faith); see also Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that merely holding an infringing domain name without active use can constitute use in bad faith).

Furthermore, Respondent’s registration of a domain name that fully incorporates Complainant’s federally registered trademark suggests that the <bluefusion.info> domain name was opportunistically registered in bad faith. See Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that the “domain names are so obviously connected with the Complainants that the use or registration by anyone other than Complainants suggests ‘opportunistic bad faith’”); see also Sony Kabushiki Kaisha v. Inja, Kil, D2000-1409 (WIPO Dec. 9, 2000) (finding bad faith registration and use where it is “inconceivable that the respondent could make any active use of the disputed domain names without creating a false impression of association with the Complainant”).

Accordingly, the Panel finds that Complainant has established Policy ¶ 4(a)(iii).

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

Accordingly, it is Ordered that the <bluefusion.info> domain name be TRANSFERRED from Respondent to Complainant.

James A. Carmody, Esq., Panelist

Dated:  November 1, 2003

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