ADMINISTRATIVE PANEL DECISION
Under the ICANN Uniform Domain Name Dispute Resolution
1. Parties and Contested Domain Name
Complainant, Altrio Communications, Inc. ("Complainant" or "ACI"), brings this action against Respondent, Mr. Bernardo Rodriguez ("Respondent" or "Rodriguez"), pursuant to ICANN's Uniform Dispute Resolution Policy (the "Policy") seeking transfer of the registration of the domain name altrio.com (the "Domain Name"). The Domain Name was registered through the domain name registrar Network Solutions, Inc. (the "Registrar").
2. Procedural History
The electronic version of the Complaint form was filed on-line on March 27, 2001. The hardcopy of the Complaint Form and annexes were received by eResolution's Clerk (the "Clerk") on April 2, 2001.
Upon receiving all the required information, the Clerk made the inquiries necessary to confirm that (1) the Registrar is Network Solutions, Inc.; (2) the Whois database contains all the required contact information for the parties; (3) the contested Domain Name resolves to an inactive Web page; and, (4) the Complaint is administratively compliant.
The Clerk fulfilled all its responsibilities under Paragraph 2(a) of the Policy by forwarding the Complaint to Respondent, notifying Complainant, the concerned Registrar and ICANN regarding this action on April 9, 2001.
The Clerk sent the complaint, official notification and all the annexes to Respondent via facsimile and registered mail with proof of service. All of the faxes were successfully transmitted and according to the Canada Post tracking system, the documents were successfully delivered by mail. Only the emails to Respondent's administrative contact were returned as "undeliverable".
Respondent did not submit a Response to the Complaint, either electronically through the eResolution Internet site or by mail.
On May 1, 2001, the Clerk's Office contacted the undersigned and requested that he act as panelist in this case. On May 2, 2001, the undersigned accepted the request and filed the necessary Declaration of Independence and Impartiality. On May 3, 2001, the parties were notified of the appointment and informed that a decision was to be, save exceptional circumstances, handed down on May 17, 2001.
3. Factual Background
In light of the fact that Respondent did not respond to the Complaint, all facts discussed herein are derived from solely from the Complaint or annexes thereto, which were submitted by Complainant.
Complainant alleges that the names "Altrio", "Altrio Communications" and the company's logo, which incorporates the name "Altrio Communications, Inc." are the subject of a pending trademark application with the United States Patent and Trademark Office, which was filed on October 18, 2000. Accordingly, Complainant alleges that the Domain Name is "identical or confusingly similar to a trademark or service mark in which the Complainant has rights."
Complainant claims that it "made several attempts over the past six months to contact the [Respondent], via phone and e-mail, to purchase the domain name, but [has] not received any response." Complainant states that these efforts involved calling Respondent's "listed telephone number", which lead it to "another number" that was disconnected. Complainant further claims that Respondent's "fax number is also directed to the same disconnected telephone number."
Complainant also submitted in support of its Complaint a March 13, 2001 e-mail message that it sent to Respondent. The message states: "Dear Bernardo, I was wondering if you had any plans for altrio.com. If you have no plans, I am interested in the site for a project I wish to start. Please let me know. Thanks! Kenneth Co."
Complainant asserts that it has "been monitoring changes in the [altrio.com] website." It further asserts that to its "knowledge and observation, no changes have been made to [Respondent's] site since September 2000. Currently, there is no content on the site and it is inactive completely."
4. Parties' Contentions
Complainant contends that it has a "valid reason to contest the rights to the [Domain Name], since it has over a long period of time been inactive. This [Domain Name] is critical to the development of Altrio Communications, Inc.'s identity. It is vital that we have access to a website with the proper name, which will enable the public to access information on the company and its products."
5. Discussion and Findings
A. Policy Standards
1. Failure to Respond to Complaint
Section 5(e) of the Policy provides: "If a Respondent does not submit a response, in the absence of exceptional circumstances, the Panel shall decide the dispute based upon the complaint." Accordingly all of the facts stated in the Complaint are assumed to be true for purposes of evaluating whether the Domain Name should be transferred pursuant to the Policy.
2. Elements Required to Transfer Domain Name
Section 4(a) of the Policy provides that in order to be entitled to a transfer of a domain name, a complainant must prove each of the following three elements:
(1) the domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(2) the respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
3. Evidence of Legitimate Interest in Domain Name
Section 4(c) of the Policy provides that a respondent can show a legitimate interest in a domain name, thereby rebutting an element of the Complainant's case, by demonstrating one of the following circumstances:
(i) before receiving any notice of the dispute, the respondent used or made preparations to use the domain name in connection with a bona fide offering of goods or services; or
(ii) the respondent has been commonly known by the domain name; or
(iii) the respondent is making a legitimate noncommercial or fair use of the domain name without intent for commercial gain, to misleadingly divert consumers or to tarnish the trademark at issue.
4. Evidence of Bad Faith Registration of a Domain Name
Section 4(b) of the Policy states that the following circumstances are evidence of registration and use of a domain name in bad faith:
(i) circumstances indicating that the respondent has registered or 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 of documented out-of-pocket costs directly related to the domain name; or
(ii) the respondent registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the respondent has engaged in a pattern of such conduct; or
(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to its web site or other online location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of its web site or location or of a product or service on its web site or location.
This list of bad faith factors is not exclusive. A Panel may determine that other circumstances not set forth in subsections (i)-(iv), above, demonstrate a respondent's bad faith.
Complainant alleges that the second level of the Domain Name at issue here is identical to the first word in Complainant's corporate name, pending trademark and trade name, "Altrio." The second level Domain Name does not, however, incorporate the remaining two words in Complainant's corporate name, pending trademark and trade name, "Communications, Inc.". Nevertheless, Complainant's use of "Altrio" as part of its corporate name and application for trademark registration is sufficient for purposes of this action to demonstrates that it has some rights to "Altrio." As discussed above, Respondent did not file a response to the Complaint. He did not rebut Complainant's showing or demonstrate that he had any superior right to "Altrio" than that alleged by Complainant. Accordingly, the Panel finds that Complainant has established this element.
2. Respondent's Interest in Domain Name
Complainant alleges in its Complaint that Respondent currently does not have an active Internet site associated with the Domain Name or that Respondent has ever engaged in such activity. Based on Complainant's allegations, it does not appear that Respondent is using or preparing to use the Domain Name in connection with a bona fide offering of goods or services; or that Respondent has been commonly known by the domain name; or that Respondent is making a legitimate noncommercial or fair use of the Domain Name without intent for commercial gain, to misleadingly divert consumers or to tarnish the claimed trademark at issue here. As discussed above, Respondent did not file a response to the Complaint. He did not show any of the circumstances set forth in Section 4(c) of the Policy that would rebut the Complaint by demonstrating his "rights or legitimate interests to the Domain Name." Accordingly, the Panel finds that Complainant has established this element.
3. Bad Faith
Complainant alleges in its Complaint that it has been unable to establish contact with Respondent and that Respondent has not made any changes to the inactive Internet site associated with the Domain Name. Neither of these allegations establish any of the circumstances constituting registration and use of a domain name in bad faith under Section 4(b)(i)-(iv) of the Policy. While it is true that a panel is not strictly limited to the circumstances set forth in Section 4(b)(i)-(iv) of the Policy in determining whether registration and use of a domain name is in bad faith, the allegations of bad faith here (namely, the Complainant's inability to establish contact with the Respondent and Respondent's lack of use of the Domain Name on an Internet site) are wholly insufficient for the Panel to make such a finding. As discussed above, Respondent did not file a response to the Complaint. However, because Complainant failed to meet its burden of proving this element, the lack of a response is irrelevant. Accordingly, the Panel finds that the Complainant has not established that Respondent registered and used of the Domain Name in bad faith.
Based on the foregoing, the Panel orders that the Complainant in this action be rejected.
Signed, this 17th May, 2001 in Los Angeles, California.
(s) Robert C. O'Brien