DECISION

HealthAccess, Inc. d/b/a Viquest v. Osita Juwah

Claim Number: FA0301000143700

PARTIES

Complainant is HealthAccess, Inc. d/b/a Viquest, Greenville, NC (“Complainant”) represented by David Stillerman.  Respondent is Osita D Juwah, Washington, DC (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME 

The domain name at issue is <viquest.com>, registered with Network Solutions, 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.

David A. Einhorn appointed as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on January 29, 2003; the Forum received a hard copy of the Complaint on February 3, 2003.

On February 3, 2003, Network Solutions, Inc. confirmed by e-mail to the Forum that the domain name <viquest.com> is registered with Network Solutions, Inc. and that the Respondent is the current registrant of the name.  Network Solutions, Inc. has verified that Respondent is bound by the Network Solutions, 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 11, 2003, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of March 3, 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@viquest.com by e-mail.

A timely Response was received and determined to be complete on February 17, 2003.

On February 21, 2003, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed David A. Einhorn as Panelist.

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

PARTIES’ CONTENTIONS

A. Complainant

[a.] The Complainant (as successor in interest to HealthQuest Horizons, Inc.) owns the rights to the Service Mark VIQUEST DESIGN (Reg. No. 2,376,882) granted to it by the United States Patent and Trademark Office.

[b.] At the time of the filing of this complaint, the Respondent was not making a bona fide offering of goods or services through the website.  Since November 12, 2001 the Respondent has failed to make any known efforts to utilize the website for either business or personal reasons.  The website has remained “under construction” since the date of purchase by the Respondent.

B. Respondent

[a.]  The Respondent coined the name “viquest” from the words, “vision” and “quest,” thus “visionquest” to be used within the context of the concept of a “global village.”

[b.]  It has only been 14 months since the domain name <viquest.com> was registered by the Respondent on November 12, 2002 and during this period, the website concept has been vetted, developed, designed and finally uploaded to the public domain.

[c.]  Furthermore, VIQUEST CORPORATION through <viquest.com> is not presently engaged in, and has no plans in the future to conduct business in the medical/healthcare field.

[d.]  The domain name, <viquest.com> was not and is not for sale; and it was never offered to the Complainant for purchase or trade.

FINDINGS

[a.]  The Respondent  registered the domain name <viquest.com> with VeriSign/Network Solutions (hereinafter “the Registrar”) on November 12, 2001. The Respondent purchased the rights to the domain name <viquest.com> without any knowledge of the Complainant.

[b.]  After the Respondent had acquired the rights to the domain name <viquest.com>, the Respondent proceeded to reserve the business name, VIQUEST CORPORATION, in the District of Columbia on February 25, 2002 and completed the incorporation of the legal entity VIQUEST CORPORATION on April 16, 2002.

[c.]  The Respondent through VIQUEST CORPORATION has simultaneously continued to develop the business VIQUEST CORPORATION and its website at the domain name <viquest.com> throughout the period beginning November 12, 2001 and up to the time of the filing of the complaint and this response.

[d.]  On January 26, 2003, the Respondent, acting as an agent for VIQUEST CORPORATION, contracted for web-hosting service with ONEWORLD HOSTING.

[e.]  The uploading of website content commenced on January 26, 2003 and was completed on February 8, 2003 with the upload of the page <viquest.com/inde.htm> and <www.viquest.com>.

[f.]  On February 10, 2003, the Respondent, acting as an agent for VIQUEST CORPORATION, contracted for Search Engine Services with NETMECHANIC.

[g.]  E-mail messages announcing the new site have been and continue to be sent out to VIQUEST CORPORATION’s target market audience.

DISCUSSION

Paragraph 15(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (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.”

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;

(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

The domain name <viquest.com> is nearly identical to Complainant’s mark VIQUEST DESIGN, except for the elimination of a slight stylized embellishment present in the registered service mark.  Therefore, Complainant has satisfied paragraph 4(a)(i) of the Policy.

Rights or Legitimate Interests

Respondent has rights or legitimate interests in the domain name.  Respondent has shown that it vetted, developed, designed and uploaded the content of the website to the public domain all prior to receiving notification of the commencement of the administrative proceeding.  Thus, Respondent has shown demonstrable preparations to use the domain name in connection with a bona fide offering of goods or services prior to notice of the dispute.  Therefore, Complainant has not satisfied paragraph 4(a)(ii) of the Policy.

Registration and Use in Bad Faith

Because the Panel has determined that Respondent has a right or legitimate interest in respect to the domain name at issue, there is no need to determine whether said domain name was registered and is being used in bad faith.  See David J. Joseph Company v. Richard F. Barry, D2000-1418 (WIPO Jan. 2, 2001).

DECISION

As the Complainant has not proven that the Respondent lacks rights or legitimate interests in respect to the domain name <viquest.com>, the Complainant’s request for transfer to it of said domain name is hereby dismissed.

David A. Einhorn, Panelist
Dated: March 7, 2003

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