ADMINISTRATIVE PANEL DECISION
Under the ICANN Uniform Domain Name Dispute Resolution
1. Parties and Contested Domain Name
The complainant is Powrachute Inc., a corporation registered in Columbus, KS, USA. The respondent is Buckeye Industries, Rockford, IL, USA.
The disputed domain names are powrachute.com, powrachute.net, powrachutes.com, and powrachutes.net; the registrar is REGISTER.COM, Inc..
2. Procedural History
The electronic version of the Complaint form was filed on-line through eResolution's Website on January 18, 2000. The hardcopy of the Complaint Form and payment were received on the same date.
Upon receiving all the required information, eResolution's clerk proceeded to:
- Confirm the identity of the Registrar for the contested Domain Name;
- Verify the Registrar's Whois Database and confirm all the required contact information for Respondent;
- Verify if the contested Domain Name resolved to an active Web page;
- Verify if the Complaint was administratively compliant.
The inquiry leads the Clerk of eResolution to the following conclusions: the Registrar is REGISTER.COM, INC., the Whois database contains all the required contact information , the contested Domain Names resolves to active Web pages and the Complaint is administratively compliant.
An email was sent to the Registrar by eResolution Clerk's Office to confirm the name of the billing contact and to obtain a copy of the Registration Agreement on January 20 2000. The requested information was received January 21, 2000.
The Clerk then proceeded to send a copy of the Complaint Form and the required Cover Sheet in accordance with paragraph 2 (a) of the ICANN's Rules for Uniform Domain Name Dispute Resolution Policy.
The Clerk fulfilled all its responsibilities under Paragraph 2(a) in connection with forwarding the Complaint to the Respondent on January 21, 2000. That date is the commencement date of the administrative proceeding.
On January 21, 2000, the Clerk's office notified the Complainant, the Respondent, the concerned Registrar, and ICANN of the date of commencement of the administrative proceeding.
On February 11, 2000 the Clerk's Office received an e-mail communication from Mr. Charles Thomas, attorney at law, which declared himself as representative of the Respondent for the case. Mr. Thomas also requested to the Clerk's Office an extension of time to respond since he did not have adequate time to prepare a response before.
On February 11, 2000 the Clerk's Office informed the Respondent's Representative that an extension will be formally considered on February 14, 2000 and that until a decision is made, the Respondent will not be considered in default.
On February 14, 2000 the Clerk's Office informed the Respondent's Representative of decision of the President of Arbitrator's Council, which granted an extension until February 22, 2000 at 5 pm EST for the Respondent to file a response.
On February 22, 2000 the Respondent submitted, via eResolution Internet site, his response. On his response, the Respondent agreed to give up his claim to the domain names in question. However, the signed version of the response was never received by the Clerk's Office.
On February 23, 2000, the Clerk's Office contacted Mr. Richard Hill, and requested for him to act as panelist in this case.
On February 28, the Complainant's Representative notified the Clerk's Office that the parties were negotiating a settlement on the case.
On February 29, 2000, Mr. Richard Hill, accepted to act as panelist in this case, but abstained from completing the formal requirements of acceptance given the fact that parties were considering a settlement on the case.
On March 20, 2000 the Complainant Representative contacted the Clerk's Office to request a suspension on the case in order to discuss the domain name conflict with the Respondent.
On May 18, 2000 the Clerk's Office contacted the Complainant in order to obtain news about the result of the negotiation between the parties concerning the settlement of the case.
On May 23, 2000 the Complainant answered the Clerk's Office, stating that an agreement was not reached between the parties, despite several attempts from their representative to contact the Respondent. Therefore, the Complainant requested the Clerk's Office to forward the case to the Panel.
On May 25, 2000 the Clerk's Office contacted Mr. Richard Hill and requested his services as Panelist for the case.
On May 26, 2000, Mr. Richard Hill, accepted to act as panelist in this case and filed the necessary Declaration of Independence and Impartiality.
On May 26, 2000, the Clerk's Office forwarded a user name and a password to Mr. Richard Hill , allowing him to access the Complaint Form, the Response Form, and the evidence through eResolution's Automated Docket Management System.
On May 26, 2000, the parties were notified that Mr. Richard Hill had been appointed and that a decision was to be, save exceptional circumstances, handed down on June 8, 2000.
3. Factual Background
The complainant is a manufacturer of powered parachutes founded in December 1998. It began to become known within the industry towards the end of 1999.
The respondent has been in the powered parachute business since at least 1992. It registered the contested domain names in December 1999.
On 22 February 2000, the respondent offered to transfer the contested domain names to the complainant in exchange for the expenses incurred to reserve the names and the costs related to the dispute resolution proceeding initiated by the complainant (see section b of Response).
4. Parties' Contentions
Complainant contends that respondent has registered as a domain name a name which is identical to its corporate name and that it did so in order to prevent the complainant from using that domain name.
Respondent contends that it was reserving any name that had to do with its products.
5. Discussion and Findings
Paragraph 4(a) of the Policy directs that the complainant must prove each of the following:
1. that the domain name registered by the respondent is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and,
2. that the respondent has no legitimate interests in respect of the domain name; and,
3. the domain name has been registered and used in bad faith.
Complainant has not contended that it has a registered trademark or service mark for POWRACHUTE or any similar name.
Nor has complainant contended, provided evidence, or given arguments to the effect that it has a common law trademark for the name POWRACHUTE. It has provided evidence that it is incorporated under this name, but the mere act of incorporation does not create a trademark. It has contended that it used this name for promotional activities, but it has not provided any evidence showing the extent or nature of this use, nor has it provided evidence of any other use of the name.
Since the complainant has not provided any evidence of rights in any trademark or service mark, the first condition of paragraph 4(a) of the Policy is not met, and the panel need not consider the matter further.
Since the complainant has not provided evidence that it has rights in a trademark or service mark that is identical or confusingly similar to the domain name in question, the panel denies the complainant's request and orders that the domain names powrachute.com, powrachute.net, powrachutes.com, and powrachutes.net remain with the respondent Buckeye Industries.
Made in Geneva, Switzerland, 30 May 2000
(s) Richard Hill