ADMINISTRATIVE PANEL DECISION
Under the ICANN Uniform Domain Name Dispute Resolution
1. Parties and Contested Domain Name
The Complainant is Drakken Ltd. of Vine House, Fair Green Reach, Cambridge United Kingdom CB5 0JD.
The Respondent is identified as Noname.com of 39120 Argonaut Way, PMB 249 Fremont California USA 94538. That description does not appear to be a formal legal entity and may be merely a trade name or style. The prime contact indicated in the submission filed by the Respondent is an individual, Ye Yun of the same address. Accordingly references to the Respondent shall include both Ye Yun and Noname.com.
The domain name at issue is oscarnet.com which is stated to be registered with Alabanza Inc.
2. Procedural History
The Complainant filed a complaint submission under the ICANN Uniform Domain Name Dispute Resolution Policy, (the "ICANN Policy") on April 19, 2000 and notice was provided to the Respondent in conformance with the applicable rules of procedure. The Respondent filed a response submission on May 30, 2000.
3. Factual Background
The Complainant made arrangements to purchase the disputed domain name on behalf of its client Spicers Ltd., a large office supplies company which carries on business in the United Kingdom. Spicers Ltd. has existing registered domain names including oscarnet.co.uk. The vendor of the domain name was Monsoft, an internet services provider located in France. The disputed domain name was allegedly transferred to the Complainant on January 19, 2000 as purportedly confirmed by a registration agreement statement submitted by the Complainant to Network Solutions Inc.
In March 2000 the Complainant attempted to make active use of the disputed domain name by pointing it to an existing oscarnet web site. The Complainant then discovered that the disputed domain name was no longer registered in the name of the Complainant. The Complainant alleges that the vendor, Monsoft, failed to pay the registration renewal fees when due, and that no notification of outstanding fees was provided to the Complainant. As a result of nonpayment of the renewal fee, registration of the disputed domain name was discontinued on January 31, 2000. Subsequently the Respondent filed a registration application, and the disputed domain name was registered in the name of the Respondent.
3. Parties' Contentions
The Complainant does not provide any particulars specifiying a trademark or service mark which is identical or confusingly similar to the disputed domain name. The Complainant does not provide any particulars of registration or use of the disputed domain name in bad faith by the Respondent. The Complainant alleges that under the circumstances it is entitled to have the disputed domain name transferred back and registered in its name.
The Respondent indicates that it had no knowledge of any sale transaction or related circumstances involving the Complainant and Monsoft at the time the Respondent applied to register the disputed domain name. The Respondent denies any bad faith, or any intention to register the domain name for the purpose of selling the name. The Respondent proposes to use the domain name for its vanity email services because the domain incorporates a common first name.
4. Discussion and Findings
Paragraph 15(a) of the Rules under the ICANN Policy provides that the Panel shall:
"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 ICANN Policy, requires the Complainant to establish:
(i) 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
(ii) That the Respondent has no rights or legitimate interests in respect of the domain name; and
(iii) That the domain name has been registered and is being used in bad faith.
The Complainant has failed to establish the existence of a trademark or service mark, or even any existing application for registration of a trademark or service mark, which is identical or similar to the disputed domain name. The name of the Complainant does not bear any similarity to the disputed domain name. The registration of the oscarnet.co.uk domain name by its client, Spicers Ltd. does not constitute a trademark or service mark, or provide any rights to the Complainant. Accordingly the Panel concludes that the disputed domain name registered by the Respondent is not identical or confusingly similar to a trademark or service mark in which the Complainant has rights.
The Complainant has failed to establish that the disputed domain name was registered and used in bad faith by the Respondent. Based on the submission presented by the Respondent the Panel concludes that the Respondent did not act in bad faith.
Based on the foregoing findings it is not necessary to consider the issue of whether or not the Respondent has any rights or legitimate interest in respect of the disputed domain name.
In accordance with Paragraph 3 (b) of the ICANN Policy, the Complainant may be entitled to seek a remedy by pursuing claims in other forums against the vendor which purportedly sold it the disputed domain name, or against the registrar that administered the associated transfer, registration and renewal arrangements. However, the Complainant has failed to establish the essential requirements necessary to support and succeed in an application against the Respondent for the limited remedies available in this administrative proceeding under the ICANN Policy.
For the foregoing reasons, the Panel decides that the claim of the Complainant is hereby dismissed.
Dated at Toronto, Canada, July 2, 2000
(s) David Marcel Robinson