DECISION

Quilogy, Inc. v. Rodney Ruddick

Claim Number: FA0211000134653

PARTIES

Complainant is Quilogy, Inc., Charles, MO (“Complainant”) represented by Rick D. Massey, of Quilogy, Inc.  Respondent is Rodney Ruddick, Memphis, TN (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME 

The domain name at issue is <quilogysucks.com>, registered with Go Daddy Software, Inc.

PANEL

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.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on November 22, 2002; the Forum received a hard copy of the Complaint on November 26, 2002.

On November 22, 2002, Go Daddy Software, Inc. confirmed by e-mail to the Forum that the domain name <quilogysucks.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 December 5, 2002, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of December 26, 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@quilogysucks.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 January 6, 2003, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed Sandra Franklin 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

The <quilogysucks.com> domain name is confusingly similar to Complainant's QUILOGY mark.

Respondent has no rights or legitimate interests in the disputed domain name.

Respondent registered and used the disputed domain name in bad faith.

B. Respondent

Respondent failed to submit a Response.

FINDINGS

Complainant holds a registered service mark for QUILOGY listed on the Principal Register of the United States Patent and Trademark Office (“USPTO”) as Registration Number 2,583,690.  Complainant uses the service mark in relation to business management consultation for database management, information technology and e-commerce.

Respondent registered the disputed domain name on October 30, 2001.  Respondent is a former employee of Complainant.  Respondent has not developed a website at <quilogysucks.com>.  Respondent does not have permission from Complainant to use its QUILOGY mark.

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 and/or Confusingly Similar

Complainant has established that it has rights in the QUILOGY mark through registration on the Principal Register of the USPTO.

Respondent’s <quilogysucks.com> domain name is confusingly similar to Complainant’s mark because it incorporates Complainant’s entire mark and merely adds the slang term “sucks.”  The addition of the term “sucks,” despite its derogatory nature to English speakers, does not create a distinct feature because the Internet is an international medium and any non-English speaking Internet user will not recognize the derogatory meaning of the English slang term.  Therefore, the disputed domain name does not overcome a claim of confusing similarity pursuant to Policy ¶ 4(a)(i).  See Vivendi Universal v. Sallen, D2001-1121 (WIPO Nov. 7, 2001) (finding the domain name <vivendiuniversalsucks.com> was confusingly similar to Complainant's VIVENDI UNIVERSAL mark, because non-English speakers would associate the domain name with the owner of the trademark); see also ADT Services AG v. ADT Sucks.com, D2001-0213 (WIPO Apr. 23, 2001) (exploring the difference of opinion among Panels on "sucks" domain name disputes and concluding that use of the "sucks" suffix does not defeat Complainant's  confusing similarity argument).

The Panel finds that Policy ¶ 4(a)(i) has been satisfied.

Rights or Legitimate Interests

Respondent has failed to respond, therefore it is assumed that Respondent lacks rights and legitimate interests in the disputed domain name.  When Complainant asserts a prima facie case against Respondent, the burden of proof shifts to Respondent to show that it has rights or legitimate interests pursuant to Policy ¶ 4(a)(ii).  See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (finding that once Complainant asserts that Respondent has no rights or legitimate interests in respect of the domain, the burden shifts to Respondent to provide credible evidence that substantiates its claim of rights and legitimate interests in the domain name); see also Parfums Christian Dior v. QTR Corp., D2000-0023 (WIPO Mar. 9, 2000) (finding that by not submitting a Response, Respondent has failed to invoke any circumstance which could demonstrate any rights or legitimate interests in the domain name).

Furthermore, because Respondent has not submitted a Response, it is appropriate for the Panel to accept all reasonable allegations and inferences in the Complaint as true.  See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (failure to respond allows all reasonable inferences of fact in the allegations of Complainant to be deemed true); see also Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding it appropriate for the Panel to draw adverse inferences from Respondent’s failure to reply to the Complaint).

Respondent registered the disputed domain name in October of 2001 and has yet to develop a website.  This behavior constitutes passive holding and does not give rise to rights or legitimate interests pursuant to Policy ¶ 4(a)(ii).  See Am. Home Prod. Corp. v. Malgioglio, D2000-1602 (WIPO Feb. 19, 2001) (finding no rights or legitimate interests in the domain name <solgarvitamins.com> where Respondent merely passively held the domain name); see also Bloomberg L.P. v. Sandhu, FA 96261 (Nat. Arb. Forum Feb. 12, 2001) (finding that no rights or legitimate interest can be found when Respondent fails to use disputed domain names in any way). 

Furthermore, Respondent is a former employee of Complainant.  Respondent registered the disputed domain name after leaving his employment with Complainant and Complainant sued him for breach of contract.  Based on these facts, it can be inferred that Respondent has no rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii).  See Vinidex Pty. Ltd. v. Auinger, AF-0402 (eResolution Oct. 18, 2000)   (finding that as a former employee, Respondent knew or should have known Complainant’s mark was in use as an integral part of the corporate name and as a trademark…Respondent understood the legitimate interests and rights of Complainant and, by contrast, its own lack of interest or right…this is sufficient for Complainant to establish that Respondent had no rights or interest in the domain name).

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

Registration and Use in Bad Faith

Policy paragraph 4(b) lists four situations that give rise to evidence of bad faith.  These four situations are not meant to be exclusive.  The Policy contemplates that the Panel may look to the totality of circumstances to establish bad faith.  See Digi Int’l v. DDI Sys., FA 124506 (Nat. Arb. Forum Oct. 24, 2002) (determining that Policy paragraph 4(b) sets forth certain circumstances, without limitation, that shall be evidence of registration and use of a domain name in bad faith); see also CBS Broad., Inc. v. LA-Twilight-Zone, D2000-0397 (WIPO June 19, 2000) (“[T]he Policy expressly recognizes that other circumstances can be evidence that a domain name was registered and is being used in bad faith”).

Respondent, as a former employee of Complainant, had actual knowledge of Complainant’s rights in the QUILOGY mark when it registered the disputed domain name.  Therefore, Respondent’s registration of the <quilogysucks.com> domain name is evidence of bad faith registration pursuant to Policy ¶ 4(a)(iii).  See Savino Del Bene Inc. v. Gennari, D2000-1133 (WIPO Dec. 12, 2000) (finding "Respondent's registration of the company name of his former employer as a domain name is an act of bad faith"); see also 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).

Moreover, Respondent has held the disputed domain name for over a year and has failed to use it for any purpose.  This is passive holding and evidence of bad faith use pursuant to Policy ¶ 4(a)(iii).  See 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); see also 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).

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 <quilogysucks.com> TRANSFERRED from Respondent to Complainant.

Sandra Franklin, Panelist

Dated: January 9, 2003

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