ADMINISTRATIVE PANEL DECISION
Under the ICANN Uniform Domain Name Dispute Resolution
1. Parties and Contested Domain Name
The complainant is Fibrocap Inc. of Quebec, Canada. The respondent is Vanseo International Ltd. Of British Columbia, Canada.
The domain name at issue is: spacekap.com
2. Procedural History
A complaint was submitted electronically through eResolution's website on April 14, 2000. The hardcopy of the complaint was received by eResolution on April 19, 2000. Payment of fees was received on April 21, 2000.
The eResolution clerk:
(1) confirmed the identity of the registrar for the contested domain name;
(2) verified the registrar's Whois database and confirmed all the required contact information for respondent;
(3) verified if the contested domain name resolved to an active web page;
(4) verified if the complaint was administratively compliant.
The inquiry led the clerk of eResolution to the following conclusions: the registrar is Network Solutions Inc., the Whois database contains all the required contact information but the billing contact, the contested domain name resolves to an inactive web page 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 April 28, 2000. The requested information was received by eResolution on May 31, 2000.
The clerk then sent a copy of the complaint form and the required cover sheet in accordance with paragraph 2 (a) of the ICANN 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 April 30, 2000. That date is the commencement date of this administrative proceeding.
On April 30, 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 May 23, 2000, the respondent failed to respond to the complaint by any means of accepted communication (electronic format, facsimile or courier).
On May 24, 2000, the clerk's office notified the parties of the respondent's failure to submit his response by any means of accepted communication and proceeded to appoint the panel.
On May 24, 2000, the clerk's office contacted Mr. Kevin Trock and requested that he act as panelist in this case.
On May 25, 2000, Mr. Kevin Trock accepted to act as panelist in this case and filed the necessary declaration of independence and impartiality.
On May 31, 2000, the parties were notified that Mr. Kevin Trock had been appointed and that a decision was to be, save exceptional circumstances, handed down on June 13, 2000.
3. Factual Background
In the absence of any response by the respondent and in the absence of exceptional circumstances, the Panel shall decide the dispute based on the complaint. (ICANN rule, para. 5 (e)). Accordingly, the Panel accepts as true the statements set forth as factual information in the complaint as no response or other documents refuting these factual statements were submitted by the respondent.
The complainant is a manufacturer of fiberglass pick-up truck boxes, for which the complainant holds U.S. and Canadian product patents. The complainant uses the trademark SPACECAP in connection with these products.
The complainant is the owner of Canadian Trademark Registration No. TM 476691 dated May 23, 1997, for the mark SPACEKAP for use with truck caps made of reinforced fiberglass. The complainant has been continuously employing said trademark in Canada with these products since at least July 1, 1992. The complainant has also been continuously using the SPACEKAP trademark in Washington, D.C. of the United States, where it has been distributing its products since 1993.
4. Parties' Contentions
Complainant contends that it owns in the trademark SPACECAP for use with fiberglass pick-up truck boxes; that the domain name at issue is identical to this trademark, that the respondent has no rights or legitimate interest in respect to the domain name at issue, and that the respondent registered the domain name in bad faith. Respondent did not file a response to the complaint.
5. Discussion and Findings
In order to prevail, the complainant must prove the following three elements: (i) respondent's domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; (ii) respondent has no rights or legitimate interests in the domain name; and (iii) respondent has registered the domain name and is using it in bad faith. (ICANN policy, para. 4 (a)).
The respondent's domain name is identical to the trademark in which the complainant has rights. Complainant has a Canadian registration for the mark SPACEKAP, which is identical to the domain name spacekap.com but for the .com top-level domain (TLD) locator. Hence, this is sufficient evidence to show that respondent's domain name is confusingly similar to complainant's trademark.
Respondent has no rights or legitimate interests in the domain name. Because respondent has not filed a response to the complaint, the panel only has the complaint by which to address this contention and there is no evidence on the record that suggests that the respondent has a right or legitimate interest in the domain name spacekap.com.
Respondent has registered the domain name spacekap.com and is using it in bad faith. Evidence of bad faith includes registering the domain name primarily for the purpose of disrupting the business of a competitor (ICANN policy, para. 4 (b)(iii)) or using a domain name to intentionally attract, for commercial gain, Internet users to the respondent's web site (ICANN Policy, para. 4(b)(iv).
Respondent was a salesman for the exclusive distributor of the complainant's in British Columbia, Canada and, as such, was in charge of selling SPACEKAP pick-up truck boxes; therefore, Respondent knew, or should have known, that the term SPACEKAP was a valid trademark belonging to the complainant. Respondent also knew or should have known that using the domain name spacekap.com would disrupt the business of the complainant who was already using the mark in the same competitive market. Additionally, respondent was informed on May 4, 1999, that he was using the complainant's trademark SPACEKAP on his web site without authorization and he should cease immediately. Respondent refused to comply with the May 4, 1999, demand letter.
Additional evidence of bad faith includes using the domain name to intentionally attempt to attract, for commercial gain, Internet users to a web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source of sponsorship, affiliation, or endorsement of a web site or location or of a product or service on a web site or location. (ICANN policy, para. 4 (b)(iv)). On September 11, 1998, respondent registered the domain name spacekap.com and advertised SPACEKAP pick-up truck boxes on his web site to intentionally attempt to attract Internet users to his web site for commercial gain. Typically, when Internet users wish to find the web site of a company or a particular brand when they do not know the URL, they will type in the name of the company or the brand with the extension ".com." An Internet user searching for complainant's web site would believe that spacekap.com would be the correct URL to find information about the complainant or its brand. Respondent advertises his product, which is the same type of product as complainant's, namely pick-up truck boxes, on his web site with a domain name that is identical or confusingly similar to complainant's trademark and brand name. Thus, Internet users searching for complainant's products would be directed to respondent's web site believing that they had found complainant's web site. Clearly, respondent was disrupting complainant's business and intentionally attempting to attract Internet users to his web site by using complainant's trademark for commercial gain.
For all the foregoing reasons, the Panel concludes that the domain name registered by the respondent is identical or confusingly similar to the trademark in which the complainant has rights, and that the respondent has no rights or legitimate interests in respect of the domain name, and that the respondent's domain name has been registered and is being used in bad faith to disrupt the business of the complainant and to attempt to attract Internet users to respondent's web site for commercial gain. Accordingly, pursuant to ICANN policy, paragraph 4 (i), the Panel directs that the registration of the domain name be transferred to the complainant.This decision of the Administrative Panel in Case No. AF-0184 was rendered on the 8th day of June, 2000 at Chicago, IL.
(s) (s) Kevin Trock, Esq.