ADMINISTRATIVE PANEL DECISION
Under the ICANN Uniform Domain Name Dispute Resolution
Under the ICANN Uniform Domain Name Dispute Resolution Policy
1. Parties and Contested Domain Name
The parties in this case are Kee Byrd Productions, Inc. as Complainant and robinbyrd-men-for-men.com as Respondent. There is one contested domain name: robinbyrd-men-for-men.com. The Registrar is Network Solutions Inc.
2. Procedural history
This is a mandatory administrative proceeding submitted for decision in accordance with the Uniform Domain Name Dispute Resolution Policy, adopted by the Internet Corporation for Assigned Names and Numbers (ICANN) on August 26, 1999 (the “Policy”), the Rules for Uniform Domain Name Dispute Resolution Policy, approved by ICANN on October 24, 1999 (the “Rules”) and the eResolution Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
By registering the subject domain name with the Registrar, the Respondent agreed to the resolution of disputes pursuant to the Policy and Rules.
The electronic version of the Complaint Form was filed on-line through eResolution’s Website on June 20, 2001. The hardcopy of the Complaint Form and annexes were received on June 26, 2001. Payment was received on June 21, 2001.
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 essential contact information for Respondent;
- Verify if the contested Domain Name resolved to an active Web page;
- Verify if the Complaint was administratively compliant.
This inquiry lead the Clerk of eResolution to the following conclusions: the Registrar is NETWORK SOLUTIONS, INC., 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 email was sent to the Registrar by eResolution Clerk’s Office to obtain confirmation and a copy of the Registration Agreement on June 21, 2001. The requested information was received June 22, 2001.
The Clerk 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 forwarding the Complaint to the Respondent, notifying the Complainant, the concerned Registrar and ICANN on June 28, 2001. This date is the official commencement date of the administrative proceeding.
E-mails were sent to addresses provided by the Registrar. Only those sent to postmaster@ robinbyrd-men-for-men.com were returned ‘undeliverable’.
The Complaint, official notification and all the annexes were sent via registered mail with proof of service, to the Respondent. According to the Canada Post tracking system, all were delivered.
The Respondent did not submit a Response neither via eResolution’s website nor a signed version.
On July 18, 2001, the Clerk’s Office contacted Edward Chiasson, Q.C. and requested that he act as panelist in this case.
n July 19, 2001, Mr. Chiasson accepted to act as panelist in this case and filed the necessary Declaration of Independence and Impartiality.
On July 24, 2001, the Clerk’s Office forwarded a user name and a password to Mr. Chiasson, allowing him to access the Complaint Form, the Response Form and the evidence through eResolution’s Automated Docket Management System.
On July 24, 2001, the parties were notified that Mr. Chiasson had been appointed and that, save exceptional circumstances, a decision was to be handed down on August 7, 2001.Having reviewed the record in this case, the Administrative Panel is satified that all technical requirements for the prosecution of this proceeding were met.
3. Factual Backgrounds
The following information is derived from the Complaint.
The Complainant owns the mark ROBIN BYRD'S MEN FOR MEN, which was registered in the United States on May 12, 1992.
The Complainant has been known by and has been using, the name and mark Robin Byrd's Men for Men in connection with an existing cable television program for over 11 years. Over the years, thousands of dollars have been spent advertising and promoting the mark.
The Complainant states that it has been hampered in obtaining information about the Respondent due to inaccurate contact information provided in the registration of the disputed domain name and the lack of an active web site which can be accessed by that URL.
The Complainant owns the domain name robinbyrdmen4men.com.
The Respondent did not file material in this proceeding.
On August 2, 2001, the Administrative Panel sent the following e-mail to the Respondent at 'email@example.com': "I am responsible for deciding a case against you and would like to make contact. Please, respond. E. Chiasson". Similarly, on August 3, an e-mail identified with the words “a test” was sent to 'firstname.lastname@example.org'. This is the e-mail address for the Respondent contained in the material provided to the Administrative Panel. Neither e-mail was returned as undeliverable.
4. Parties' Contentions
The Complainant relies on its registration and use of its mark and states that the subject domain name "is nearly identical" to it. It asserts that the provision of inaccurate contact information and the lack of activity at the web site to which the subject domain name resolves show that the Respondent does not have a legitimate interest in the subject domain name. This also leads to the conclusion that the subject domain name was registered and is being used in bad faith.
The Respondent has stated no position in this proceeding.
5. Discussions and Findings
Paragraph 4(a) of the Policy requires the Complainant to prove that:
(i) a domain name is identical or confusingly similar to a service mark to which the Complainant has rights;
(ii) the Respondent has no legitimate interest in respect of the domain name;
(iii) the domain name has been registered and is being used in bad faith.
Paragraph 4(b) provides for the implication of evidence of bad faith in a number of circumstances:
(i) circumstances that indicate 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 trademark or service mark or to a competitor of the Complainant, for valuable consideration in excess of the Respondent’s documented out-of-pocket costs directly related to the domain name;
(ii) registration of 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;
(iii) registration of the domain name primarily for the purpose of disrupting the business of a competitor;
(iv) by using the domain name, intentionally attempting to attract, for commercial gain, Internet users to the Respondent’s 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 the web site or location or of a product or service on the web or location.
These are illustrative and do not represent the only circumstances from which may arise evidence of bad faith.
The resolution of this dispute takes place in the context of a consideration of the requirements of Paragraph 4(a) of the Policy.
Identical or Confusing
It is clear that the Complainant has a mark. The subject domain name differs only very slightly. It does not contain the hyphen "s" and the words are separated by dashes. For all practical purposes it is identical.
The Administrative Panel is satisfied that the requirements of Paragraph 4(a)(i) have been met.
The absence of any use of a domain name brings into question the legitimacy of the interest of the owner. Also relevant is the apparent absence of any connection between the business or name of the Respondent and a domain name. In the absence of any explanation by the Respondent, an administrative panel is entitled to an absence of a legitimate interest in the domain name.
The Administrative Panel is satisfied that the requirements of Paragraph 4(a)(ii) have been met.
A finding that a Respondent has registered a domain name which is identical or confusingly similar to the rights of a Complainant and that the Respondent does not have a legitimate interest in the domain name, does not lead automatically to a conclusion that the domain name was registered and used in bad faith. Bad faith is a separate ingredient that a Complainant must establish, but it can do so relying on the evidence overall and on inferences that derive from that information and legitimately from other conclusions in the case.
In this case, the registration of the name is suspect because it tracks very close to the mark and domain name of the Complainant. The Respondent has offered no explanation for this. An inference properly can be drawn that it acted in bad faith.
The difficulty in this case is the lack of any information that shows that the Complainant made any effort to deal with the Respondent. It is asserted that the contact information is defective, but the material shows that eResolution successfully contacted the Respondent at e-mail addresses other than “postmaster@ robinbyrd-men-for-men.com” There is nothing in the material to show what, if any, efforts were taken by the Complainant to contact the Respondent. E-mails sent by the Administrative Panel to the address in the official contact information and one similar to it, were not returned as undeliverable.
It is important to note that a Respondent is not obliged to respond to a domain name Complaint. The failure to do so may adversely affect its position, but the obligation to establish the case against the Respondent remains on the Claimant.
There is no information that the Respondent has attempted to sell the subject domain name or that any activity that it may carry on in Nicaragua effects the Complainant in any way.
In substance, the Complainant relies on little more than the fact of registration to support a bad faith claim and that is not enough.The Administrative Panel is not satisfied that the requirements of Paragraph 4(a)(iii) have been met.
Based on the information made available to it and its findings, the Administrative Panel is not satisfied that the Complainant has established its case. The Complaint is dismissed, but without prejudice to the Complainant's right to initiate another Complaint based on fresh and more complete information. If this were done, it would be for the Administrative Panel appointed to deal with that case to determine whether the additional information should be received and to consider the merits based on all of the information before it.