ADMINISTRATIVE PANEL DECISION
Under the ICANN Uniform Domain Name Dispute Resolution
1. Parties and Contested Domain Name
Complainant is The Aurora Group, an unidentified business entity or fictitious name with its office in Hackensack, N.J. Complainant's designated representative is Lisa Salim.
Respondent is Kevin Huribut with a Post Office address in San Francisco, California. Respondent's representative is identified as Net-Admin at Astragate, Inc. with an address in Santa Clara, California.
2. Procedural History
A complaint was received through eResolution's Website on October 17, 2000. Hardcopy of the Complaint Form and annexes were received on October 30, 2000. Payment was received on November 14, 2000.
eResolution's Clerk advises that the Register of the contested Domain Name is Network Solutions, Inc., the Whois database contains all the required contact information, the contested Domain Name resolves to an active Web page and the Complaint is administratively compliant.
An email was sent to the Registrar by eResolution Clerk's Office on October 17, 2000 to obtain confirmation and a copy of the Registration Agreement and the information was received on October 18, 2000. The Clerk advises that on November 16,2000 it sent 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 and has fulfilled all of its responsibilities under Paragraph 2(a). The Clerk further advises that emails sent to "firstname.lastname@example.org" and to the distractive contact were returned "undeliverable". All faxes were successful. The Complaint, official notification and all the annexes were sent via registered mail with proof of service to Respondent and according to Canada Post tracking system, such transmittal was delivered.
Respondent has not submitted a Response either to eResolution's website or by hardcopy. This Panelist, therefore, finds that Respondent received notice of the Complaint and failed to submit a Response as required by Rule 5. Accordingly, this Panelist shall proceed to a decision based on the allegations in the complaint and shall draw such inferences as are appropriate from the evidence submitted.
3. Factual Background
The Complainant has alleged that it has a pending trademark application, Serial Number 75/927,172 Filed in the United States Patent and Trademark Office on February 23, 2000 for the mark "Sweet Surrender" which it intends to use for dietary supplement/lozenge products. The filing receipt reflects the mark was applied for "food supplements and vitamins". A letter from Complainant's trademark attorney purports to represent that the mark will be published for opposition on November 21, 2000. There is no evidence that the mark has in fact been published and no information as to whether any opposition was filed. The Complainant has therefore, failed to establish that it has an issued Trademark for "Sweet Surrender", although as will be clear from the following analysis, this element is not wholly determinative.
In response to an inquiry from the Panelist, the Complainant has confirmed by email dated December 27, 2000, that the mark "Sweet Surrender" has not been previously used in connection with the sale of products but will shortly be used under the name "Sweet Surrender Lozenges".
Respondent uses the name "www.sweetsurrender.com" as a link to various adult web sites. The Respondent's website does not sell or offer products or services through the contested website address. There is no evidence as to when the Respondent commenced use of the contested website address or when it was registered.
4. Parties' Contentions
Complainant alleges that the Respondent who is the current registrant of the domain name "Sweet Surrender" will not respond to inquiries regarding purchase of the domain and is using it simply as a listing for links to web sites of an "adult" nature. Complainant further alleges that the Respondents use of "our product name in such a manner clearly creates an association between the two", and this association is harmful to the Complainant's name, mission and products.
Complainant alleges that the Respondent does not have a legitimate interest in the domain name since it is simply a collection of links to various pornography sites and the registrant is not identified. Bad Faith is alleged on the basis that Complainant has not been able to contact the registrant by email or certified mail.
Respondent has not filed any response and is in default.
5.Discussion and Findings
A. Applicable Rules and Principles of Law
Paragraph 15(a) of the Rules provides in part that the Panelist shall decide a complaint on the basis of the statements and documents submitted and any rules and principles of law that it deems applicable.
Respondent is in default under Rule 5 and under Rule 14(a) this Panelist shall "proceed to a decision on the complaint", and shall draw such inferences as are appropriate from other documents submitted.
Paragraph 4(a) of the Policy directs that the complainant must prove each of the following:
(i) that the domain name registered by the respondent is identical or confusingly similar to a trademark in which the complainant has rights; and
(ii) that the respondent has no legitimate interests in respect of the domain name: and
(iii) the domain name has been registered and used in bad faith.
Rule 4(b) sets for the standard of bad faith as that term is used in Rule 4(a).
Complainant has provided evidence that the mark it has applied for in its Trademark Application is similar to the disputed domain name. Unfortunately, the Complainant's submission does not establish that it is the owner of an issued Trademark. Even if the attorney's annexes are taken as admissible evidence (they are clearly hearsay as submitted), Complainant has failed to submit evidence that the proposed mark was in fact published for opposition, if it was then the date it was published for opposition, whether or not opposition was filed, whether or not the time to oppose has passed and whether or not a notice of issuance was received. Accordingly, the Complainant has not met its burden of proof to establish that it is the owner of the Trademark "Sweet Surrender" or any derivation thereof. Therefore, the Complainant has failed to satisfy its burden of proof under Rule 4a)(i).
There is no evidence that the Respondent's registration of the domain name did not predate the filing date of the Complainant's Trademark Application and Complainant has admitted that the mark is, as of this date, still not in use. Therefore, Complainant has failed to meet is burden of proof under Rule 4(a)(ii) as there is no evidence that Respondent has no legitimate interests in the domain name. The mere fact that the name is used as a link to adult sites, no matter how pornographic the materials linked may be, does not disqualify the Respondent's rights for the purposes of these proceedings.
Lastly, there is no evidence that the Respondent registered the name in bad faith. There is no evidence that the Respondent is cybersquating in that it registered the name for the purpose of selling it for consideration in excess of its value to the complainant. In fact, the evidence is to the contrary. The Complainant complains that in not being able to reach the registrant, it cannot make an offer to purchase the website domain name. Further, there is no evidence that the domain name was registered with any knowledge that the Complainant intended to use the mark for any purpose.
For all of the foregoing, the Panelist holds that notwithstanding the Respondent's default, the Complainant has not met the requisite burden of proof to establish that its mark is a trademark in which Complainant has rights, that Respondent has no rights of legitimate interests in respect of the domain name or that its has been registered by Respondent in bad faith.
(s) Michael L. Wachtell