ADMINISTRATIVE PANEL DECISION
Under the ICANN Uniform Domain Name Dispute Resolution
1. A Complaint was filed by MAUPINTOUR LLC of Lawrence, Kansas, on-line through eResolution's Website on June 23, 2000, with the hard copy received by eResolution on June 28, 2000. The named Respondent is STEPHAN WIDMER of Chicago, Illinois, the registered owner of the disputed domain name: maupintours.com. The Registrar is Network Solutions Inc. The Complainant seeks transfer to it of the disputed domain name.
2. The procedural history of this case, including the persistent efforts by the Clerk's Office of eResolution to notify the Respondent of the commencement of this proceeding, is set out in detail in the letter dated July 26, 2000, sent by Helen Finn, lawyer for eResolution, to Mark R. Joelson, lead panelist appointed to hear this case, which is attached to this decision as Exhibit 1. The Respondent has not submitted a Response to the Complaint.
3. Paragraph 5 (e) of the Rules for Uniform Domain Name Resolution Policy (hereafter "ICANN Rules") provides that, if the Respondent does not submit a Response, "in the absence of exceptional circumstances, the Panel shall decide the dispute based upon the complaint." Accordingly, since the Panel knows of no exceptional circumstances here, it shall decide the dispute based upon the Complaint.
4. The Complaint asserts that Complainant and its predecessors have used the trade name and trademark MAUPINTOUR since as early as 1951 in connection with escorted tour services and travel agency services. In this connection, Complainant submits, as an annex to its Complaint, a copy of U.S. federal service mark registration No. 1635033, issued February 12, 1991, owned by Complainant in class 39 for escorted tour services and travel agency services, and containing the word "Maupintour." Complainant also states that it has pending registration applications and other plans relating to the mark MAUPINTOUR. The Complaint states further that Complainant registered its domain name, maupintour.com, in 1995 and conducts a thriving business under the name, service mark and domain name.
5. The Complaint points out that the disputed domain name simply adds an "s" to the Complainant's registered mark, thus creating a likelihood of confusion, a false designation of origin, passing off and other injury to Complainant and its good will. The Complaint further asserts that the contested domain name should be considered as having been registered and being used in bad faith because the Respondent has never been commonly known by the domain name and there has been no evidence of its use of or demonstrable preparations to use the domain name in connection with a bona fide offering of goods or services.
6. Paragraph 1 of the Uniform Domain Name Dispute Resolution Policy (hereafter the "ICANN Policy") states that the ICANN Policy is incorporated by reference in each Registration Agreement and sets forth the terms and conditions in connection with a dispute between the Registrant and any party other than the registrar over the registration and use of any Internet domain name registered by the Registrant. The ICANN Policy further states, in Paragraph 4 (a), that the Registrant is required to submit to a mandatory administrative proceeding in the event that a third party asserts to the applicable dispute-resolution service provider and proves in the administrative proceeding that (i) the registered domain name is identical or confusingly similar to a trade mark or service mark in which the complainant has rights; and (ii) the Registrant has no rights or legitimate interests in respect of the domain name; and (iii) the domain name has been registered and is being used in bad faith. The Respondent is therefore bound to submit to this proceeding initiated by Complainant, which is subject to the provisions of the ICANN Policy and the ICANN Rules.
7. Paragraph 14 (a) of the ICANN Rules provides that, in the absence of exceptional circumstances, if a Party fails to comply with any requirement of those Rules, the Panel shall draw therefrom such inferences as it deems appropriate. Here the Respondent has failed to file a Response as required by Rule 5 of the ICANN Rules. Accordingly, the Panel shall draw the inference that the Respondent has no evidence to submit in his behalf in this proceeding.
8. The Complainant in this proceeding has made the three assertions required by the ICANN Policy, namely that the registered domain name is confusingly similar to the Complainant's registered service mark, that the Respondent has no legitimate right in respect of the domain name, and that the contested domain name has been registered and is being used in bad faith. The question before this Panel, therefore, is whether the Complainant has proved that each of these elements listed by Paragraph 4 (a) of the ICANN Policy is present.
9. Is the disputed domain name identical or confusingly similar to the Complainant's service mark? The Panel finds that the Complainant has satisfied its burden of proof in this regard. The disputed domain name adds only an "s" to the Complainant's service mark of Maupintour, so that the domain name is confusingly similar to the Complainant's service mark.
10. Does the Respondent have any rights or legitimate interests in respect of the domain name? The Panel finds, on the record before it, that Complainant has satisfied its burden of proof in this regard. In the absence of any Response from the Respondent indicating that it has any rights or legitimate interests in the disputed domain name, and in view of the substantial evidence submitted by Complainant of its legitimate interests and rights in the name "Maupintour", the Panel accepts Complainant's proof as conclusive.
11. Was the contested domain name registered and is it being used in bad faith? The Panel finds that the Complainant has satisfied its burden of proof in this regard. To show such bad faith, the Complainant is required to demonstrate that circumstances of the type set forth in Paragraph 4 (b) of the ICANN Policy are present. In view of Complainant's long established interest and right in the name "Maupintour" in connection with its business, the substantial likelihood of confusion between the contested domain name and Complainant's registered service mark, and the lack of any Response that might justify Respondent's claim to the domain name, the Panel concludes that the following evidence of the registration and use of the domain name by the Respondent exists and is conclusive:
(A) there are circumstances indicating that the Respondent has registered or has 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 service mark or to a competitor of that Complainant, for valuable consideration in excess of the Respondent's documented out-of-pocket costs directly related to the domain name; and (B) there are circumstances indicating that, by using the domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its web site or other on-line location, by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of Respondent's web site or location or of a product or service on the Respondent's web site or location.
12. Pursuant to Paragraph 2 of the ICANN Policy, setting forth the representations and warranties made by the Respondent in applying to register the contested domain name, the Panel finds that Respondent falsely and in bad faith represented and warranted that, to its knowledge, the registration of the domain name would not infringe or otherwise violate the rights of any third party.
13. Complainant has therefore met its burden of proof. Having found for the Complainant, the Panel must now address the issue of the remedy. Complainant requests that the Panel order the transfer of the contested domain name to the Complainant. Pursuant to Paragraph 4 (i) of the ICANN Policy, and in view of the close similarity of the disputed domain name to Complainant's name and registered service mark, this is an appropriate remedy. Accordingly, the Panel ORDERS that the domain name maupintours.com be transferred to the Complainant.
This decision was rendered on August 3, 2000.
Original Signed by
(s) Mark R. Joelson