ADMINISTRATIVE PANEL DECISION

Under the ICANN Uniform Domain Name Dispute Resolution


 
Complainant: CANHOST INC.
Respondent: TRILLIUM INTERNET SERVICE
Case Number: AF-0241
Contested Domain Name: canhost.com
Panel Member: Sarah Rudolph Cole
 

 

1. Parties and Contested Domain Name

The Complainant is CanHost Inc. of Bowmanville, Ontario, Canada.

The Respondent is Trillium Internet Service of Newmarket, Ontario, Canada.

The domain name at issue is canhost.com, which is registered with TUCOWS.com.

2. Procedural History

The electronic version of the Complaint form was filed on-line through eResolution's Website on June 2, 2000. The hardcopy of the Complaint Form and the annexes were received on June 16, 2000. Confirmation of payment was received on June 15; 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 leads the Clerk of eResolution to the following conclusions: the Registrar is tucows.com, the Whois database contains all the required contact information, the contested Domain Name resolves to an inactive Web page and the Complaint is administratively compliant.

An e-mail was sent to the Registrar by eResolution Clerk's Office to obtain a copy of the Registration Agreement on June 2, 2000. The requested information was received June 5, 2000.

The Clerk's Office 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 June 19, 2000. That date is the commencement date of the administrative proceeding.

On June 19, 2000, the Clerk's office notified the Complainant, the Respondent, the concerned Registrar, and ICANN of the date of commencement of the administrative proceeding.

Only the email to the postmaster@trillium.com was returned 'undeliverable'. The faxes were successful.

The complaint, official notification and all the annexes were sent by UPS to the respondent. According to the UPS tracking system, all were delivered.

A username and password were given to the Respondent on June 22, 2000. On July 7, 2000 the Respondent submitted a response via the eResolution Internet site.

The Respondent submitted a signed version on July 19, 2000. The Response is, of course, late. The Respondent has been notified that the hard copies of his response and the annexes were received late and that he may request permission to submit arguments in support of his late response.

On July 20, 2000, the Clerk's Office contacted Ms. Sarah Cole, and requested that she act as panelist in this case.

On July 24, 2000, Ms. Sarah Cole accepted to act as panelist in this case and filed the necessary Declaration of Independence and Impartiality.

On July 24, 2000, the Clerk's Office forwarded a user name and a password to Ms. Sarah Cole, allowing her to access the Complaint Form, the Response Form, and the evidence through eResolution's Automated Docket Management System.

On July 24, 2000, the parties were notified that Ms. Sarah Cole had been appointed and that a decision was to be, save exceptional circumstances, handed down on August 6, 2000.

3. Factual Background

The Complainant, CanHost Inc., incorporated under the Canada Business Act and under the Ontario Corporations Act on September 14, 1999. Complainant provides hosting services for internet related domain names, web sites, e-mail facilities, storage, data manipulation, data movement and consulting with regard to the above-mentioned services. Trillium Internet Services is a web host provider. It registered the domain name "canhost.com" some time in 1998. In November 1999, Anthony Santen of CanHost Inc. contacted Michael Castro of Trillium Internet Services and offered to purchase the domain name. Negotiations were unsuccessful. After offering one hundred and fifty dollars for the domain name, Complainant asked InterNIC to transfer the domain name to it. InterNIC granted the request, which was immediately reversed by Respondent. No further negotiations have taken place. On June 2, Complainant electronically filed its complaint with eResolution. On June 13, 2000, Complainant filed an application to register its name as a trademark. Respondent filed a response to the complaint after the deadline for filing a response had passed. Although offered the opportunity to request permission to file arguments in support of its late response, Respondent has failed to do so.

4. Parties' Contentions

Complainant contends that Respondent has "parked" the domain name "canhost.com" for the "sole purpose of hindering our business" and that Respondent has no right to use the name for "trading." Complainant submits as evidence of bad faith e-mail correspondence between Complainant and Respondent in which Respondent states that it is open to discussing the sale of the domain name but that it has no idea what price to ask for because it is not in the business of "hoarding domain names."

Because Respondent's response was submitted late, it will not be considered during this administrative proceeding pursuant to Rule 14 of the Uniform Dispute Resolution Policy (UDRP). According to Rule 14 :

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.

5. Discussion and Findings

To prevail under section 4(a) of the UDRP, 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.

As mentioned above, Respondent's failure to file a timely response affects the panel's deliberations. According to Arbitrator Post in Softquad Software, Inc. v. Eleven-Eleven Ltd, AF-0143 (http://www.eresolution.com/services/dnd/decisions/0143.htm), Rule 14 of the UDRP, which should be applied in cases where the Respondent does not file a timely response, 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.

Pursuant to Rule 14 of UDRP, then, Respondent's late-filed response will not be considered and the Panel shall proceed to a decision on the Complaint. Also pursuant to Rule 14, the Panel shall draw such inferences from the Complaint that it deems appropriate.

After evaluating the evidence Complainant offers according to the guidelines set forth in Rule 14, the lead panelist concludes that Complainant has failed to establish that Respondent registered and is using the contested domain name in bad faith. Because Complainant cannot establish bad faith, lead panelist does not reach the questions of whether the domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights and whether the Respondent has any rights or legitimate interests in the domain name.

Complainant offers the following as evidence of Respondent's bad faith : [1] allegations that Respondent parked the domain name for the sole purpose of hindering our business, [2] allegations that Respondent cannot use the domain name for trading, and [3] evidence that Respondent engaged in brief negotiations with Complainant in which the sale of the domain name was discussed.

It is not clear what provision of UDRP Rule 4(b) Complainant believes Respondent has violated. The e-mail negotiations regarding the sale of the domain name do not amount to bad faith since they do not demonstrate that Respondent registered the domain name primarily for the purpose of selling it to the owner of the trademark or service mark. In its response to Complainant's inquiry regarding the possibility of sale, Respondent stated that it was not in the business of hoarding domain names but could not determine an appropriate sale price for the domain name. That Complainant approached Respondent and Respondent could not come up with a price hardly suggests that Respondent acquired the domain name primarily for the purpose of selling it to Complainant.

The allegation that Respondent parked the domain name in order to hinder Complainant's business is just that - an allegation. Complainant provides no evidence that this was actually the case. In fact, the evidence suggests the opposite conclusion. Respondent registered the domain name before Complainant incorporated its business. Because of this timing, it seems unlikely that Respondent's registration of the name and its subsequent failure to use the name was intended to harm or disrupt Complainant's business.1

6. Conclusions

Despite Respondent's failure to file a timely response, Complainant has failed to establish that Respondent acted in bad faith in registering the contested domain name. Thus, the Complaint is rejected.

7. Signature

August 5, 2000, Columbus, Ohio, USA

(s) Sarah Rudolph Cole

Presiding Panelist

1. Complainant's allegation that Respondent has no right to trade under the domain name fails for the same reason.