ADMINISTRATIVE PANEL DECISION
Under the ICANN Uniform Domain Name Dispute Resolution
1. Parties and Contested Domain Name
The complainant, Nuhad Khoury Cosmetics & Perfumery, Inc., is located in Nashville, Tennessee. The complainant's representative is I.C. Waddey of Nashville, Tennessee.
The respondent, Ahmed Hindawi, is located at Cairo, Egypt.
The contested domain name is tiba.com.
Remedy sought: Transfer.
2. Procedural History
The electronic version of the complaint form was filed on-line through eResolution's website on May 2, 2000. The hardcopy of the complaint form was received on May 8, 2000. Payment was received on May 8, 2000.
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 lead the clerk of eResolution to the following conclusions: the Registrar is Network Solutions, Inc., the Whois database contains all the required contact information including the billing contact and the contested Domain Name resolves to an active Web page and the complaint is administratively compliant.
An email was sent to the Registrar by the eResolution Clerk's Office to confirm the name of the billing contact and to obtain a copy of the Registration Agreement on May 8, 2000. The requested information was received May 15, 2000.
The Clerk's Office then sent a copy of the complaint form and the required cover sheet to the respondent in accordance with paragraph 2(a) of the ICANN's rules for Uniform Domain Name Dispute Resolution Policy.
On May 28, 2000, the respondent submitted, via the eResolution internet site, his response. The signed version of the response was not received.
3. Factual Background
The complainant has registered the trade-mark "tiba" in the United States for face, body and hair beauty salons and health spas. The registration is for services (in the United States such trade marks are called "service marks"). A related trade mark "tiba vita" is also registered in the United States for diet planning and supervision, fitness consultation, cosmetic and colour analysis, health spa services and fashion consultation services.
"Tiba" is the Arabic name of Thebes. Thebes is the ancient Egyptian capital city. It is now known as Luxor. Luxor is an important city for tourism and artifacts. The domain name tiba.com is not in use in association with the provision of goods and services. It is "parked" at; and is offered for sale through a broker, GreatDomains.com.
The description of tiba.com on the GreatDomains.com website says the following: "The Internet Business Academy, Association, Assembly, Associates, …Tiba is also the Arabic name of Thebes, …" This description appears to people reviewing the details of the domain name, including its asking price, on the GreatDomains.com website. Originally, no asking price was indicated. The complainant made an offer of $300.00 for the domain name through the broker which was declined without comment or counteroffer. After the offer was rejected an asking price of $3,000.00 was posted.
The respondent was born, lives and works in Luxor, Egypt. He obtained the domain name to use to operate a website about the city. It is to be a city directory. The domain names Thebes.com and Luxor.com were already taken when the respondent selected the name. The respondent has contacted many businesses in Luxor to offer them a place in the proposed tiba.com directory. He offers to list their businesses in this directory for $100.00 per year with an option to have a website as a subdomain. A subdomain would cost $200.00 per year. For example, the Fardoos Hotel can use the u.r.l. http://fardoos.tiba.com. Some prospective clients have paid for the year 2001.
The respondent has invested time and money marketing the idea of an on-line directory of businesses in Tiba. He feels there is value in having a short meaningful domain name tiba.com rather than a longer version such as tiba.city.com. The fact the website is not up and running and is due to his incomplete attempts to get paying clients to finance the website and because he is overwhelmed by his publishing business and has no time to work on it.
The respondent states that he was not aware of the complainant or its service mark at any time before he got the complainant through eResolution. He was not trying to sell the domain name specifically to the complainant or to anyone. He points out that the complainant did not contact him directly and that the $300.00 bid reached him through GreatDomains.com. The identity of the bidder was not revealed to the respondent.
4. Parties' Contentions
The complainant's contention is that the registrant has not acquired any rights in tiba.com and is not using it to provide goods and services. The complainant alleges that the offer for sale of the domain name is use in bad faith. The $3,000.00 asking price is said to be much more than the cost of the domain name. Further, the complainant asserts that the respondent is intending to sell tiba.com to the owner of the service mark "tiba", to prevent its use by the service mark owner by selling it to the general public, or to drive up the price of the sale to the service mark owner by enticing third parties to purchase it. The complainant suggests that "The Internet Business Associations", as identified in the GreatDomains.com posting, is one such third party being so enticed by the advertisement.
The respondent says that as a person born in Tiba, living in Tiba and working in Tiba, who wishes to create a website about Tiba for businesses purposes, he has a legitimate interest in using tiba.com as a domain name for that purpose. He has already invested money in establishing that business.
The respondent explains the listing of tiba.com for sale on GreatDomains.com in two ways. He says that he listed it without any intention of selling it, but just to see how much a domain name can be attractive through offers he may receive for it. He says it can help him determine how much marketing value that domain name can bring to a website about the city. Besides, he states that there is always the possibility that someone will offer him enough for it that he would have an incentive to sell it and to use a different domain name for his proposed online directory about Tiba (Luxor).
5. Discussion and Findings
The applicable provisions of the ICANN Uniform Name Dispute Resolution Policy are found in section 4 of the Policy. The complainant has the onus of showing that the registrant has a domain name identical to its service mark, that the respondent has no rights or legitimate interest in respect of the domain name, and that the domain name has been registered and is being used in bad faith.
The complainant has demonstrated the identity of the domain name and its trade mark.
The complainant has not made out either of the latter two grounds.
The respondent has a legitimate interest in the tiba.com domain name. It is a former name of the city he lives in. He intends to use it in connection with a business related to that city. The complainant's trade mark rights are not alleged to extend beyond the borders of the United States. There is no allegation the mark is used, registered or known outside the United States. Accordingly, there is no reason to suppose that its adoption in Egypt by an Egyptian is illegitimate.
Further, the allegation is that the domain name was registered and is being used by the respondent in bad faith. The policy provides the following example of bad faith:
"circumstances indicating that you [the respondent] have registered or you have acquired the domain name primarily for the purpose of selling. renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess for your documented out of pocket costs directly related to the domain name;"
The respondent did not acquire the domain name primarily for the purpose of selling, renting or otherwise transferring it. He acquired it primarily for the purpose of establishing a web site dealing with the city of Luxor. Second, the respondent did not set out to sell the domain name to the owner of the service mark. There was no owner of the service mark in Egypt. The respondent had never heard of the complainant, the owner of the service mark in the United States. He made no attempt to contact the complainant even after it made a bid for the domain name. Mr. Hindawi did not make a counter-offer when the complainant made a bid for the domain name.
There is no evidence that "The Internet Business Association" existed or that it is a competitor of the complainant. It is plainly just a suggested use of the domain name made to potential buyers.
In view of the finding that no bad faith can be attributed to the respondent, I make no finding as to whether there has been "use" of the domain name.
The Complaint is dismissed.
Signed at Toronto, Ontario this 29th day of June, 2000.
(s) David G. Allsebrook