ADMINISTRATIVE PANEL DECISION
Under the ICANN Uniform Domain Name Dispute Resolution
1. Parties and Contested Domain Name
The complainant is Arcturus Engineering Inc., of 400 Logue Avenue, Mountain View, California USA 94043.
The respondent is a corporation known as Arcturus, of East 245 Sixth Street, Ste.900, St. Paul, Minnesota USA 55101.
The contested domain name is arcturus.com.
2. Procedural History
The electronic version of the complaint form was filed on-line through eResolution's Website on 21 March 2000. The hardcopy was received on 27 March 2000. Payment was received on 1 April 2000.
Upon receiving all the required information, eResolution's clerk ascertained that the registrar is Network Solutions Inc., the Whois database contains all the required contact information including the billing contact; the contested domain name resolves to an inactive web page and the complaint is administratively compliant.
The registrar confirmed the existence of a valid registration agreement.
On 13 April 2000, the clerk sent a copy of the complaint form and the required cover sheet to the respondent in accordance with paragraph 2 (a) of ICANN's Rules for Uniform Domain Name Dispute Resolution Policy ("the Rules"). That date is the commencement date of the administrative proceeding.
On 13 April 2000, the clerk's office notified the parties, the registrar and ICANN of the date of commencement of the administrative proceeding. According to Rule 5(a) and (eResolution's) Supplemental rule 7.a. the respondent had to submit its response to eResolution within 20 days of that date.
The respondent filed its response via the eResolution website. The version of the response held on the eResolution website bears the notation: "Web Version Received: 4/5/2000 12:48:35 AM (GMT 5)". No hard copy of the response was received. The clerk's office informed the respondent that the response form was filed late.
On 10 May 2000, the clerk's office contacted Mr. Alan Limbury, and requested him to act as panelist in this case. That day Mr. Limbury accepted the appointment and filed the necessary Declaration of Independence and Impartiality. On 11 May 2000, the parties were notified that the panelist had been appointed and that, save in exceptional circumstances, a decision was to be handed down on 24 May 2000.
The panel sought from the respondent:-
(a) information as to the timing of the transmission of its response to eResolution;
(b) any explanation as to why the response was sent late; and
(c) any submission as to why the circumstances are exceptional and why there should be an extension of time granted by the panel.
The respondent stated that it entered its response on the eResolution website on the night of 3 May 2000 and saw a note on the eResolution website at "around 10.30pm" that night stating that the response had been successfully entered. It contended that its response was not late, the last day for the response, by its calculations, being 3 May 2000. It made no submission as to exceptional circumstances.
The complainant was afforded an opportunity to comment on the respondent's statements concerning the timing of its response. The complainant submitted that May 3rd is 21 days from April 13th because "April has 31 days in it" and that the circumstances are not exceptional, there being no event such as a power failure or computer breakdown or hospitalization involved.
It is necessary for the panel to resolve the preliminary question whether the response was late because, according to Rules 5(e) and 14, if the respondent does not comply with any of the time periods, in the absence of exceptional circumstances, the panel shall decide the dispute based upon the complaint only. However, in exceptional cases the panel has power, under Rule 10 (c), to extend a period of time fixed by the Rules.
As mentioned, the respondent had to submit its response "within twenty (20) days of the date of commencement of the administrative proceeding" (Rule 5(a)). That date was 13 April 2000, the day on which eResolution notified the respondent and others of the complaint. Under Rule 2(g), time begins to run "on the earliest date" that eResolution's notification was deemed to have been made, namely 13 April 2000 (Rule 2(f)). Taking 13 April 2000 as the date on which time began to run, the panel (whose calendar for April 2000 has only 30 days in it) finds the last day for submitting the response was 3 May 2000.
There is no reason to disbelieve the respondent's account of its having transmitted its response at "around 10.30 pm" on 3 May 2000. However, 10.30 pm in Mountain View, California was 12.30 am next day at the eResolution website in Montreal. This accounts for the notation on the website version.
Accordingly, the panel finds the response sent via the Internet was not within time.
The panel finds that there were no exceptional circumstances which would justify an extension of time for submitting the response.
For these reasons, in reaching its decision, the panel has not taken the response into account.
3. Factual Background
The complainant is in the biotech field, marketing a cancer research system. Its corporate name for the last 4 years has been Arcturus Engineering, Inc. It is currently trademarking the name ARCTURUS, which appears and will continue to appear on all its literature, logos and company information. An example has been provided.
Its current domain name is arctur.com which makes it difficult for customers to reach it.
The domain name in contention has been registered since June 1999. It does not appear to be in use. The complainant's customers become confused when they search www.arcturus.com only to find what appears to be a dead site.
4. Contentions of the complainant
Copy or similarity
The complainant says the contentious domain name has been dormant since registration almost 1 year ago and is confusing its customers and losing prospective buyers.
The complainant says the respondent has not proven any interest publicly in the name Arcturus because the site remains dormant. The contact telephone number listed in the www.betterwhois.com site is now disconnected. Last year it was answered by a person who did not own a computer and did not know what a website was. Other efforts by the complainant to contact the respondent have been fruitless.
The complainant believes that since the site appears to be dormant, this appears to be squatting. The complainant can put the site to very good use: a vehicle in cancer research. Its abortive attempts to contact the respondent lead the complainant to believe the respondent is using the name in bad faith.
5. Discussion and Findings
To qualify for a remedy, the complainant bears the onus of proving each of the 3 elements set out in paragraph 4(a) of the ICANN Uniform Domain Name Dispute Resolution Policy, as approved by ICANN on 24 October 1999 ('the Policy'), namely (i) the domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights ; (ii) the respondent has no rights or legitimate interest in respect of the domain name ; and (iii) the domain name has been registered and is being used in bad faith.
Identity or confusing similarity
The domain name arcturus.com is not identical to the name arcturus, which the complainant has been using and is currently trademarking but it is clearly confusingly similar, having as its essential element that very name. The complainant has established this element.
The complainant's contention that the respondent has not proven it has any legitimate interest is not to the point, since it is the complainant who bears the onus of proof on this issue.
The complainant has not established this element.
Having regard to the preceding finding, it is not necessary to this decision for the panel to express a view on this issue. However, in case this matter proceeds to litigation, it may be of assistance to the court for the panel to do so.
The fact that a website is dormant for almost a year after registration, without more, does not demonstrate registration and use in bad faith. Difficulty in contacting the respondent does not alter this conclusion. There is no evidence of the kind contemplated in paragraph 4(b) of the Policy, nor any other evidence of bad faith of the kind the complainant must demonstrate. The fact that the complainant could put the name to good use is irrelevant.
The panel finds that the complainant has not established this element.
For these reasons, the panel finds the dispute is not within the scope of paragraph 4(a) of the Policy. Accordingly the complaint is dismissed.
Dated 19 May 2000 at Sydney, Australia.
(s) Alan L Limbury