Dsn.com

The timeline behind dsn.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 DSN Software Inc. v. JDV Limited Claim Number: FA0802001143772 PARTIES Complainant is DSN Software Inc. (“Complainant”), represented by Martin L. Laurence, of Martin L. Laurence Attorney at Law, Washington, USA. Respondent is JDV Limited (“Respondent”), Australia. REGISTRAR AND DISPUTED DOMAIN NAME The domain name at issue is <dsn.com>, registered with Network Solutions, 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. Sandra J. Franklin as Panelist. PROCEDURAL HISTORY Complainant submitted a Complaint to the National Arbitration Forum electronically on February 11, 2008; the National Arbitration Forum received a hard copy of the Complaint on February 13, 2008. On February 11, 2008, Network Solutions, LLC. confirmed by e-mail to the National Arbitration Forum that the <dsn.com> domain name is registered with Network Solutions, LLC. and that Respondent is the current registrant of the name. Network Solutions, LLC. has verified that Respondent is bound by the Network Solutions, 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 February 25, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 17, 2008 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@dsn.com by e-mail. Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default. On March 21, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Sandra J. Franklin as Panelist. Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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 National Arbitration 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 <dsn.com> domain name is identical to Complainant’s DSN mark. 2. Respondent does not have any rights or legitimate interests in the <dsn.com> domain name. 3. Respondent registered and used the <dsn.com> domain name in bad faith. B. Respondent failed to submit a Response in this proceeding. FINDINGS Complainant, DSN Software Inc., provides computer programs, systems and hardware products and services. Complainant has used its DSN mark in connection with this business since 1989. Complainant registered its DSN mark with the United States Patent and Trademark Office (“USPTO”) on January 13, 2004 (Reg. No. 2,804,870). Respondent registered the <dsn.com> domain name on November 22, 2004. Respondent’s disputed domain name does not resolve to an active website. 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. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”). 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 has registered its DSN mark with the USPTO. The Panel finds this registration is sufficient to establish Complainant’s rights in its DSN mark pursuant to Policy ¶ 4(a)(i). See U.S. Office of Pers. Mgmt. v. MS Tech. Inc., FA 198898 (Nat. Arb. Forum Dec. 9, 2003) (“[O]nce the USPTO has made a determination that a mark is registrable, by so issuing a registration, as indeed was the case here, an ICANN panel is not empowered to nor should it disturb that determination.”); see also Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004) (“Registration of the NASAL-AIRE mark with the USPTO establishes Complainant's rights in the mark.”). Respondent’s <dsn.com> domain name completely incorporates Complainant’s DSN mark with the addition of the generic top-level domain (“gTLD”) “.com.” The addition of the gTLD “.com” is not legally significant when evaluating whether a disputed domain name is identical to a mark. Therefore, the Panel finds Respondent’s <dsn.com> domain name is identical to Complainant’s DSN mark pursuant to Policy ¶ 4(a)(i). See Pomellato S.p.A v. Tonetti, D2000-0493 (WIPO July 7, 2000) (finding <pomellato.com> identical to the complainant’s mark because the generic top-level domain (gTLD) “.com” after the name POMELLATO is not relevant); see also Daedong-USA, Inc. v. O’Bryan Implement Sales, FA 210302 (Nat. Arb. Forum Dec. 29, 2003) (“Respondent's domain name, <kioti.com>, is identical to Complainant's KIOTI mark because adding a top-level domain name is irrelevant for purposes of Policy ¶ 4(a)(i).”). The Panel finds Policy ¶ 4(a)(i) has been satisfied. Rights or Legitimate Interests Complainant has alleged Respondent does not have rights or legitimate interests in the disputed domain name. Once Complainant presents a prima facie case supporting these allegations, the burden shifts to Respondent to establish it does have rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). The Panel finds Complainant has presented a sufficient prima facie case to support its allegations. Respondent failed to submit a response to these proceedings. Therefore, the Panel assumes Respondent does not have rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). However, the Panel will nevertheless inspect the record and determine whether Respondent has rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c). See Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“Proving that the Respondent has no rights or legitimate interests in respect of the Domain Name requires the Complainant to prove a negative. For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”); see also Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002) (“[B]ased on Respondent's failure to respond, it is presumed that Respondent lacks all rights and legitimate interests in the disputed domain name.”). Respondent’s <dsn.com> domain name does not resolve to an active website. The Panel finds Respondent’s failure to make an active use of the disputed domain name is not a use in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Pharmacia & Upjohn AB v. Romero, D2000-1273 (WIPO Nov. 13, 2000) (finding no rights or legitimate interests where the respondent failed to submit a response to the complaint and had failed to make an active use of the domain name in question); see also Flor-Jon Films, Inc. v. Larson, FA 94974 (Nat. Arb. Forum July 25, 2000) (finding that the respondent’s failure to develop the site demonstrates a lack of legitimate interest in the domain name). Respondent is listed in the WHOIS information as “JDV Limited.” The record indicates Complainant has not authorized Respondent to use its DSN mark. Therefore, the Panel finds Respondent is not commonly known by the <dsn.com> domain name pursuant to Policy ¶ 4(c)(ii). See Ian Schrager Hotels, L.L.C. v. Taylor, FA 173369 (Nat. Arb. Forum Sept. 25, 2003) (finding that without demonstrable evidence to support the assertion that a respondent is commonly known by a domain name, the assertion must be rejected); see also Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply). The Panel finds Policy ¶ 4(a)(ii) has been satisfied. Registration and Use in Bad Faith Respondent has not activated a website under the <dsn.com> domain name. The Panel finds Respondent’s failure to make an active use of the disputed domain name is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See DCI S.A. v. Link Commercial Corp., D2000-1232 (WIPO Dec. 7, 2000) (concluding that the respondent’s failure to make an active use of the domain name satisfies the requirement of ¶ 4(a)(iii) of the Policy); see also Mondich v. Brown, D2000-0004 (WIPO Feb. 16, 2000) (holding that the respondent’s failure to develop its website in a two year period raises the inference of registration in bad faith). The Panel finds Policy ¶ 4(a)(iii) has been satisfied. DECISION Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED. Accordingly, it is Ordered that the <dsn.com> domain name be TRANSFERRED from Respondent to Complainant. Sandra J. Franklin, Panelist Dated: April 3, 2008 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.