DECISION

Navigo Energy Inc. v. Andreas Meier and toptarget.com BV

Claim Number: FA0310000206312

PARTIES

Complainant is Navigo Energy Inc. (“Complainant”) represented by Robert Low, 1400, 350-7th Avenue S.W., Calgary, AB, T2P 3N9 Canada. Respondent is Andreas Meier and toptarget.com BV, Kingsfordweg 151, Amsterdam, Netherlands 1043 GR (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <ventusenergy.com> registered with Enom, Inc.

PANEL

The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.

James A. Crary as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on October 28, 2003; the Forum received a hard copy of the Complaint on October 28, 2003.

On October 28, 2003, Enom, Inc. confirmed by e-mail to the Forum that the domain name <ventusenergy.com> is registered with Enom, Inc. and that Respondent is the current registrant of the name. Enom, Inc. has verified that Respondent is bound by the Enom, 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 October 30, 2003, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of November 19, 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@ventusenergy.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 November 25, 2003 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed James A. Crary 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 <ventusenergy.com> domain name is identical to Complainant’s VENTUS ENERGY mark.

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

3. Respondent registered and used the <ventusenergy.com> domain name in bad faith.

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

FINDINGS

Complainant is a company incorporated under the laws of Alberta, Canada and is publicly traded on the Toronto Stock Exchange. On May 24, 2002, Complainant changed its corporate name from Ventus Energy Inc. to Navigo Energy Inc.

Respondent registered the <ventusenergy.com> domain name on December 18, 2002. Respondent is using the disputed domain name to divert Internet users to a website that purportedly provides pornographic material.

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 changed its corporate name from Ventus Energy Inc. to Navigo Energy Inc. on May 24, 2002. Complainant proclaims that it used the Ventus Energy Inc. name as a common law trademark in connection with its goods and services provided to the oil and gas industry. However, Complainant has produced no evidence to establish any use of the Ventus Energy name in connection with any goods or services. While a trade name can function as a trademark or service mark based on the context of its use, there is no evidence of such use here. The Policy was intended solely to protect registered and unregistered trademarks and not trade names because trade names are not universally protected as are trademarks. Therefore, without any evidence of secondary meaning associated with Complainant’s former name, the Panel finds that its use of Ventus Energy as a trade name does not establish rights pursuant to Policy ¶ 4(a)(i). See Front Range Internet, Inc. v.  Murphy a/k/a This Domain For Sale, FA 145231 (Nat. Arb. Forum Apr. 4, 2003) (finding that Complainant’s use of a trade name, without any showing of secondary meaning associated with the name, was an insufficient demonstration that Complainant “had rights” under the Policy); see also Powrachute Inc. v. Buckeye Indus., AF-0076 (e-Resolution, May 30, 2000) (dismissing a Complaint where Complainant failed to contend, provide evidence, or give arguments to the effect that it had either a registered trademark or service mark in POWRACHUTE or any similar name, or that it had a common law trademark in the name. The only evidence provided, that it was incorporated under the name, is insufficient to create a trademark).

Moreover, Complainant’s bald assertion of acquiring a considerable amount of goodwill in its former name is not sufficient to establish any secondary meaning associated with the Ventus Energy Inc. name. The Complaint’s lack of any evidentiary support for its establishment of the trade name as a mark requires the Panel to find that Complainant has failed to establish that Ventus Energy is a mark in which Complainant has rights under Policy ¶ 4(a)(i). See Molecular Nutrition, Inc. v. Network News and Publ’ns. c/o Baratta, FA 156715 (Nat. Arb. Forum June 24, 2003) (approving of and applying the principles outlined in prior decisions that recognized “common law” trademark rights as appropriate for protection under the Policy “if the complainant can establish that it has done business using the name in question in a sufficient manner to cause a secondary meaning identifiable to Complainant's goods or services”); see also Lowestfare.com LLA v. US Tours & Travel, Inc., AF-0284 (eResolution Sept. 9, 2000)  (finding that marks classified as descriptive cannot be protected unless secondary meaning is proven and to establish secondary meaning Complainant must show that the public identifies the source of the product rather than the product itself).

Accordingly, the Panel finds that Complainant has failed to establish Policy ¶ 4(a)(i).

Based on this finding, the Panel declines to inquire into the remaining elements of the Policy because Complainant has failed to establish the first element. See Creative Curb v. Edgetec Int’l Pty. Ltd., FA 116765 (Nat. Arb. Forum Sept. 20, 2002) (finding that because Complainant must prove all three elements under the Policy, Complainant’s failure to prove one of the elements makes further inquiry into the remaining elements unnecessary); see also VeriSign Inc. v. VeneSign C.A., D2000-0303 (WIPO June 28, 2000) (finding that Respondent’s default does not automatically lead to a ruling for Complainant).

DECISION

Having failed to establish all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.

Accordingly, it is Ordered that the <ventusenergy.com> domain name REMAIN with Respondent.

James A. Crary, Panelist

Dated:  December 6, 2003

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