ADMINISTRATIVE PANEL DECISION
Under the ICANN Uniform Domain Name Dispute Resolution
1. Parties and Contested Domain Name
The Complainant is Clark Pest Control of Stockton, Inc., a corporation headquartered in Lodi, California, U.S.A. The Respondent is Mike Rogers, who is the owner of Romance Pest Control, located in Morgan Hill, California, U.S.A. The domain names at issue are "clarkpestcontrol.com," "clarkpestcontrol.org" and "clarkpestcontrol.net." These domain names were registered with Register.com Inc.
2. Procedural History
The electronic version of the Complaint form was filed on-line through eResolution's Website on May 8, 2000. The hardcopy of the Complaint Form was received on May 8, 2000. A partial payment was received on May 12, 2000. Full Payment was received on May 23, 2000.
On May 8, 2000, the Clerk's Office requested Complainant's choice of jurisdiction. The requested information was received on May 25, 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 led the Clerk's Office of eResolution to the following conclusions: the Registrar is Register.com Inc., the Whois database contains all the required contact information but the billing contact, the contested Domain Names resolve to inactive 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 May 25, 2000. The requested information was received on May 30, 2000.
The Clerk's Office 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's Office fulfilled all its responsibilities under Paragraph 2(a) in connection with forwarding the Complaint to the Respondent on May 31, 2000. That date is the commencement date of the administrative proceeding.
On May 31, 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 31, the Clerk's Office received an email from the Mail Delivery Subsystem stating that the following email addresses had permanent fatal errors:
On June 7, 2000, the Clerk's Office received an Advice of Receipt from Canada Post confirming that Respondent had received the Official Notification of Commencement of Administrative Proceeding.
On June 21, 2000, the Respondent had not yet submitted his response.
On June 21, 2000, the Clerk's Office contacted Ms. Sarah Cole, and requested that she acts as panelist in this case.
3. Factual Background
The Complainant, Clark Pest Control of Stockton, Inc., is the holder, in the United States, of the registered service mark "Clark Pest Control." The complainant uses this service mark in its business of providing pest control services in Northern California.
The Respondent, Mike Rogers, is the owner of Romance Pest Control. Rogers registered the domain names "clarkpestcontrol.com," "clarkpestcontrol.net" and "clarkpestcontrol.org," which incorporate the service mark "clarkpestcontrol." Romance Pest Control also provides pest control services in Northern California.
4. Parties' Contentions
The Complainant contends that Respondent has registered three domain names incorporating a mark that is identical to the service mark that Complainant registered and currently uses. Complainant also states that Respondent has no rights or legitimate interest in the three versions of the domain name using the service mark and that the registration was made in bad faith and will be used in bad faith to divert customers from Complainant to Respondent's company.
The Respondent failed to file a Response within the time limit set by the Clerk's office. Thus, this dispute, according to Rule 5(e) of the ICANN Rules for Uniform Domain Name Dispute Resolution Policy (the « Rules »), shall be decided on the basis of the Complaint alone. See eResolution Case No. AF-0176 (available at http://www.eresolution.com/services/dnd/decisions/0176.htm )
5. Discussion and Findings
According to section 4(a) of the Uniform Dispute Resolution Policy (UDRP), in order to prevail, a Complainant must prove that:
(i) [the challenged] domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights ; and
(ii) [the Respondent has] no rights or legitimate interests in the domain name ; and
(iii) [the] domain name has been registered and is being used in bad faith.
Rule 14 of UDRP, entitled « Default, » states the following :
a) In the event that a Party, in the absence of exceptional circumstances, does not comply with any of the time periods established by these Rules or the Panel, the Panel shall proceed to a decision on the complaint.
(b) If a Party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, these Rules or any request from the Panel, the Panel shall draw such inferences therefrom as it considers appropriate.
As Arbitrator Post in Softquad Software, Inc. v. Eleven-Eleven Ltd, AF-0143 (http://www.eresolution.com/services/dnd/decisions/0143.htm), held, Rule 14 of the UDRP does not appear to call for a « default » the way that term is traditionally used in a court of law. Instead, Rule 14 states that the Panel should render a decision on a Complaint, in the absence of a response, after evaluating the evidence presented by the Complainant and drawing appropriate inferences from that evidence. See id.
Evaluating the evidence from this perspective, this Panel concludes that Complainant has met its burden of proof on all three of the required elements in section 4(a) and should prevail. First, the challenged domain names, though not identical to Complainant's service mark, satisfy the « confusingly similar » standard articulated in section 4(a). See Carpenter Jr. Walter v. Clement, J.D., AF-0148 (May 14, 2000) (http://www.eresolution.com/services/dnd/decisions/0148.htm). Second, the evidence demonstrates that Respondent, as a direct competitor of and with a different corporate name than Clark Pest Control, has no rights or legitimate interest in the three contested domain names.
Although somewhat more difficult to establish, Complainant has also successfully demonstrated that the domain names were registered and are being used in bad faith. Complainant contends that section 4(a)(iii) is satisfied because Respondent's registration of the three versions of the domain name using Complainant's service mark shows that Respondent plans to use the domain names in bad faith to divert customers from Complainant to Respondent's company. See Complaint, section C. According to section 4(b)(iii), the requirements of section 4(a)(iii), that the domain name(s) have been registered and are being used in bad faith, can be satisfied by establishing that Respondent « registered the domain name primarily for the purpose of disrupting the business of a competitor . . . » After reviewing the evidence, this Panel concludes that the only reasonable inference that can be drawn from Respondent's decision to register domain names using its direct competitor's service mark, is that it intends to disrupt Complainant's business by preventing Complainant from establishing its own website using its own service mark1. The Panel does not reach the question of whether Respondent has plans to divert customers from Complainant to Respondents' Company because such a conclusion is not required as a condition precedent to a finding of bad faith. Complainant, by establishing that Respondent has registered these marks and is a direct competitor of Complainant, satisfies the bad faith requirement of section 4(a)(iii).
For the reasons set forth above, the Complainant's request to cancel the three contested domain names is granted.
June 27, 2000
Columbus, Ohio USA
(s) Sarah Rudolph Cole
1) Respondent's failure to file a response strengthens the inference that no legitimate reason exists that would support Respondent's decision to register the contested domain names.