Web900dialer.com, Web900dialer.net, Web900dialer.org

The timeline behind web900dialer.com

Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.

How each disputed name was decided in this proceeding.

Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.

DECISION Internet Billing Company, Ltd. v. Internet Solutions GmBH Claim Number: FA0106000097663 PARTIES Complainant is Internet Billing Company, Ltd., Ft. Lauderdale, FL, USA ("Complainant") represented by Robert C. Kain, Jr., of Fleit, Kain, Gibons, Gutman & Bongini, P.L. Respondent is Internet Solutions GmBH, Eschborn, Germany ("Respondent"). REGISTRAR AND DISPUTED DOMAIN NAMES The domain names at issue are <web900dialer.com>, <web900dialer.net>, and <web900dialer.org> registered with CORE. 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. Judge Ralph Yachnin as Panelist. PROCEDURAL HISTORY Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on June 13, 2001; the Forum received a hard copy of the Complaint on June 14, 2001. On June 14, 2001, CORE confirmed by e-mail to the Forum that the domain names <web900dialer.com>, <web900dialer.net>, and <web900dialer.org> are registered with CORE and that Respondent is the current registrant of the name. CORE has verified that Respondent is bound by the CORE 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 June 20, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of July 10, 2001 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@web900dialer.com, postmaster@web900dialer.net, and postmaster@web900dialer.org 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 July 13, 2001, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed Judge Ralph Yachnin 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 names be transferred from Respondent to Complainant. PARTIES’ CONTENTIONS A. Complainant The <web900dialer.com>, <web900dialer.net>, and <web900dialer.org> domain names are confusingly similar to Complainant’s U.S registered WEB900 mark. Respondent does not have rights or legitimate interests in respect to the <web900dialer.com>, <web900dialer.net>, and <web900dialer.org> domain names. The <web900dialer.com>, <web900dialer.net>, and <web900dialer.org> domain names were registered and used by Respondent in bad faith. B. Respondent No Response was received. FINDINGS Since 1995, Complainant has used its distinctive and unique WEB900 service mark in connection with its Internet billing services for Internet vendors primarily associated with ‘900’ telephone numbers. Assignor of Complainant registered the WEB900 service mark on the Principal Register of the United States Patent and Trademark Office on April 15, 1997 as Registration No. 2,052,441. Complainant’s market extends throughout the United States, Canada, Germany, Austria, France, the Netherlands, and Spain. Complainant currently provides its services to customers in Germany, the country of origin of Respondent. Respondent registered the <web900dialer.com>, <web900dialer.net>, and <web900dialer.org> domain names on September 29, 2000. Respondent has not made any use of the disputed domain names. 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. 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 Complainant owns a U.S. service mark registration for its WEB900 mark. The Policy does not require registration of a mark in the same country as Respondent in order for Complainant to successfully assert that it has rights in a mark. See Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which a Respondent operates. It is sufficient that a complainant can demonstrate a mark in some jurisdiction). The ICANN dispute resolution policy is "broad in scope" in that "the reference to a trademark or service mark ‘in which the complainant has rights’ means that ownership of a registered mark is not required–unregistered or common law trademark or service mark rights will suffice" to support a domain name complaint under the policy. McCarthy on Trademarks and Unfair Competition, § 25:74.2, Vol. 4 (2000). The <web900dialer.com>, <web900dialer.net>, and <web900dialer.org> domain names wholy incrporate the WEB900 mark of Complainant combined with a generic word describing the type of customers Complainant deals with. See Space Imaging LLC v. Brownwell, AF-0298 (eResolution Sept. 22, 2000) (finding confusing similarity where the Respondent’s domain name combines the Complainant’s mark with a generic term that has an obvious relationship to the Complainant’s business). The Panel finds that Policy ¶ 4(a)(i) has been satisfied. Rights or Legitimate Interests Respondent has failed to come forward to demonstrate it has rights or legitimate interests in the <web900dialer.com>, <web900dialer.net>, and <web900dialer.org> domain names. See Talk City, Inc. v. Robertson, D2000-0009, (WIPO Feb. 29, 2000) ("[i]n the absence of a response, it is appropriate to accept as true all allegations of the Complaint"). Furthermore, there is a presumption that Respondent has no rights or legitimate interests with respect to a disputed domain name where Respondent fails to submit a response. 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). Respondent’s passive holding of the disputed domain names does not constitute a bona fide offering of goods or services, pursuant to Policy ¶ 4(c)(i). See American 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 (Feb. 12, 2001) (finding that no rights or legitimate interest can be found when Respondent fails to use disputed domain names in any way). There is no evidence in the record, and Respondent has not come forward to establish that it is commonly known by the <web900dialer.com>, <web900dialer.net>, and <web900dialer.org> domain names, pursuant to Policy ¶ 4(c)(ii). See 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). Furthermore, there is no evidence that demonstrates Respondent is making a legitimate noncommercial, or fair use of the <web900dialer.com>, <web900dialer.net>, and <web900dialer.org> domain names pursuant to Policy ¶ 4(c)(iii). See Broadcom Corp. v. Intellifone Corp., FA 96356 (Nat. Arb. Forum Feb. 5, 2001) (finding no rights or legitimate interests because Respondent is not commonly known by the disputed domain name or using the domain name in connection with a legitimate or fair use); see also AltaVista v. Krotov, D2000-1091 (WIPO Oct. 25, 2000) (finding that use of the domain name to direct users to other, unconnected websites does not constitute a legitimate interest in the domain name). The Panel finds that Respondent has no rights or legitimate interests in the disputed domain name, and that Policy ¶ 4(a)(ii) has been satisfied. Registration and Use in Bad Faith Respondent’s passive holding further constitutes a finding of bad faith, pursuant to Policy ¶ 4(a)(iii). See Alitalia –Linee Aeree Italiane S.p.A v. Colour Digital, D2000-1260 (WIPO Nov. 23, 2000) (finding bad faith where the Respondent made no use of the domain name in question and there are no other indications that the Respondent could have registered and used the domain name in question for any non-infringing purpose); see also DCI S.A. v. Link Commercial Corp., D2000-1232 (WIPO Dec. 7, 2000) (concluding that the Respondent’s passive holding of the domain name satisfies the requirement of paragraph 4(a)(iii) of the Policy). Furthermore, because of the distinctive nature of Complainant’s WEB900 mark, it may be assumed that Respondent had notice of Complainant’s mark at the time Respondent registered the disputed domain names. See 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 commonly known mark at the time of registration). 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’"). The Panel finds that Policy ¶ 4(a)(iii) has been satisfied. DECISION Having established all three of the elements under the ICANN Policy, the Panel concludes that the requested relief should be hereby granted. Accordingly, it is Ordered that the <web900dialer.com>, <web900dialer.net>, and <web900dialer.org> domain names be transferred from Respondent to Complainant. Hon. Ralph Yachnin, Panelist Justice, Supreme Court, NY (Ret.) Dated: July 16, 2001 Click Here to return to the main Domain Decisions Page. Click Here to return to our Home Page

Source of record: FORUM . Reproduced for research; FORUM is the authoritative source.