Mygames.com

The timeline behind mygames.com

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

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

NATIONAL ARBITRATION FORUM DECISION Digital Interactive Systems Corporation v. Christian W c/o KBIG 104 Claim Number: FA0605000708968 PARTIES Complainant is Digital Interactive Systems Corporation, (“Complainant”), 444 W. Ocean Blvd., Suite 1070, Long Beach, CA 90802. Respondent is Christian W c/o KBIG 104 (“Respondent”), 1160 Encino Dr., San Marino, CA 91108. REGISTRAR AND DISPUTED DOMAIN NAME The domain name at issue is <mygames.com>, registered with Bulkregister, Llc. 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. Richard Hill as Panelist. PROCEDURAL HISTORY Complainant submitted a Complaint to the National Arbitration Forum electronically on May 18, 2006; the National Arbitration Forum received a hard copy of the Complaint on May 18, 2006. On May 22, 2006, Bulkregister, Llc. confirmed by e-mail to the National Arbitration Forum that the <mygames.com> domain name is registered with Bulkregister, Llc. and that the Respondent is the current registrant of the name. Bulkregister, Llc. has verified that Respondent is bound by the Bulkregister, Llc. 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 May 31, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of June 20, 2006 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@mygames.com by e-mail. A timely Response was received and determined to be complete on June 19, 2006. On June 21, 2006, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Richard Hill as Panelist. RELIEF SOUGHT Complainant requests that the domain name be transferred from Respondent to Complainant. PARTIES’ CONTENTIONS A. Complainant According to Complainant, the disputed domain name is identical and indistinguishable from its MY GAMES trademark. Complainant has been using the MY GAMES trademark for over one year in the company’s product, marketing materials, press, etc. Complainant alleges that Respondent is transacting no commerce on the website. Respondent has transacted no other commerce using the disputed domain name. Further, according to the Complainant, Respondent registered the disputed domain name under the pretense that he would be developing a gaming website. Although Respondent has owned the domain for a number of years, there is no commerce being transacted on the website, and his claim that development is in progress is clearly a mere attempt to avoid being characterized as a cyber squatter. Complainant states that although Respondent claims that he is not actively seeking to sell the domain, he states that he welcomes offers for its purchase. B. Respondent According to Respondent, the disputed domain name, while textually identical, is not “confusingly similar” to the Complainant’s trademark MY GAMES because it is a common phrase. The Respondent’s ownership of the disputed domain name (which dates to October 3, 2000) predates the registration of the Complainant’s trademark (filed at the United States Patent and Trademark Office on January 13, 2005) by over four years. Respondent alleges that its use of the disputed domain name is in connection with a bona fide offering of service. The domain was registered in October 2000. Since that time, the domain has been providing email services (POP/SMTP/Distribution lists) to hundreds of users. These services include E-mail accounts and global mailing lists amongst its members. It is primarily in use amongst the professional radio broadcast industry to share ideas and contacts for on-air games, contests and prizes. According to Respondent, on approximately April 28, 2006, its Internet servers were illegally accessed by a hacker. Several of the Respondent’s domain names and E-mail addresses were hijacked and fake web sites were created by the hacker in what appeared to be an attempt to sell fraudulently the domain names to unwitting buyers. The disputed domain name was one of these domain names hacked. The hijack was not limited to domains owned by the Respondent; other customers on the same server were also affected. Respondent states that it removed these pages upon being notified of their existence. As previously stated, the disputed domain name is used for E-mail services relating to radio on-air games, and does not currently have, and has never in the past had a web presence. The Respondent has no desire to sell, lease or transfer the disputed domain name. FINDINGS Respondent registered the disputed domain name in October 2000. Respondent has been using the disputed domain name to provide E-mail services. Complainant registered its mark MY GAMES in January 2005 and does not claim any prior usage of that mark. 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 It is obvious that the disputed domain name is identical to the Complainant’s mark MY GAMES. Rights or Legitimate Interests Respondent has provided sufficient evidence to convince the Panel that he is using the disputed domain name to provide E-mail services, and that this establishes rights in the disputed domain name in accordance with ¶ 4(c)(i) of the Policy. See, e.g., InfoSpace, Inc. v. Lemieux, D2000-1476 (WIPO Jan. 18, 2001) (finding that the use of the <sportsinfospace.com> domain name was a bona fide offering of goods or services where the respondent registered the domain solely for the purpose of offering season tickets to baseball games and restricted the use to that extent); see also Modern Props, Inc. v. Wallis, FA 152458 (Nat. Arb. Forum June 2, 2003) (finding that the respondent’s operation of a bona fide business of online prop rentals for over two years was evidence that the respondent had rights or legitimate interests in the disputed domain name). Complainant alleges that Respondent offers to sell the disputed domain name. Respondent denies this allegation. Although the point is moot in the context of the present case, the Panel recalls that offering a domain name for sale is, absent other factors, a legitimate use of a domain name. As the Panel stated in Manchester Airport PLC v. Club Club Limited, D2000-0638 (WIPO Aug 21, 2000): It is not contested that respondent has attempted to sell the contested domain name to the respondent for an amount well in excess of the registration fees. But selling a domain name is not per se prohibited by the ICANN Policy (nor is it illegal or even, in a capitalist system, ethically reprehensible). Selling of domain names is prohibited by the ICANN Policy only if the other elements of the ICANN Policy are also violated, namely trademark infringement and lack of legitimate interest. The Panel holds that Respondent has rights in the disputed domain name. Registration and Use in Bad Faith Since the Respondent registered the disputed domain name four years before the Complainant obtained its mark, and since the Complainant’s mark is composed of two common words, it seems obvious that there is no reason to believe that the Respondent acted in bad faith. Indeed, the case law on this point is clear. See Interep Nat'l Radio Sales, Inc. v. Internet Domain Names, Inc., D2000-0174 (WIPO May 26, 2000) (finding no bad faith where the respondent registered the domain prior to the complainant’s use of the mark); see also Open Sys. Computing AS v. degli Alessandri, D2000-1393 (WIPO Dec. 11, 2000) (finding no bad faith where the respondent registered the domain name in question before application and commencement of use of the trademark by the complainant). The Panel holds that Respondent did not register or use the disputed domain name in bad faith. DECISION For the reasons given above, the Panel concludes that relief shall be DENIED. The Complaint is dismissed. Richard Hill, Panelist Dated: July 3, 2006 Click Here to return to the main Domain Decisions Page. Click Here to return to our Home Page NATIONAL ARBITRATION FORUM

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