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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Mary-Lynn Mondich and American Vintage Wine Biscuits, Inc. v. Shane Brown, doing business as Big Daddy’s Antiques.
Case No. D00-0004
The complainant is Mary-Lynn Mondich, an individual, and American Vintage Wine Biscuits, Inc., a New York corporation located in Long Island City, New York, United States of America. The respondent is Shane Brown, doing business as Big Daddy’s Antiques in Hermosa Beach, California, United States of America.
The Domain Name(s) and Registrar(s)
The domain name at issue is <americanvintage.com>, registered with Network Solutions, Inc. in the United States of America.
A Complaint was submitted electronically to the World Intellectual Property Organization Arbitration and Mediation Center (the "WIPO Center") and was received by WIPO on January 4, 2000.
On January 7, 2000, Network Solutions Inc. confirmed by e-mail to WIPO that the domain name <americanvintage.com> is registered with Network Solutions Inc. and that the respondent, Big Daddy’s Antiques, was the current registrant of the name. The registrar also confirmed that The Uniform Domain Name Dispute Resolution Policy is in effect for the registration.
On January 10, 2000, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification") was transmitted to the respondent and to the persons listed on the respondent’s registration as technical, administrative, zone and billing contacts by express courier, facsimile and e-mail setting a deadline of January 29, 2000, by which the respondent could file a Response to the Complaint. The record contains confirmation showing that the Commencement Notification was received at the facsimile addresses of the technical and administrative contacts of the respondent.
On January 31, 2000, having received no Response from the designated respondent, using the same contact details and methods as were used for the Commencement Notification, WIPO transmitted to the parties a Notification of Respondent Default.
On February 3, 2000, pursuant to complainant’s request to have the dispute decided by a single-member panel, WIPO appointed Mark Partridge as Panelist.
Having reviewed the communications records in the case file, the Administrative Panel finds that the WIPO Center has discharged its responsibility under Paragraph 2(a) of the Uniform Rules "to employ reasonably available means calculated to achieve actual notice to Respondent." Therefore, the Administrative Panel shall issue its Decision based on the Complaint, the Policy, the Uniform Rules, the WIPO Supplemental Rules, and without the benefit of any Response from respondent.
The complainant has provided evidence of the registration of the following mark:
Trademark - AMERICAN VINTAGE, for "bakery products, namely, biscuits" registered for a term of 10 years from December 24, 1991,with the United States Patent and Trademark Office.
The respondent Big Daddy’s Antiques has registered the domain name <americanvintage.com>. No date of registration appears in the record. Similarly, there is no evidence in the record that the respondent is a licensee of complainant or is he otherwise authorized to use complainant’s marks.
The certified Complaint asserts that respondent has been in business under the name American Vintage Wine Biscuits since 1989 and "have a large amount of consumer identification." Complaint, para. (vii). The Complaint also alleges that the respondent’s web site is still under construction although it has held the registration for the domain name for two years. Complaint, para (ix)(2).
In early 1999, after receiving notification that complainant had filed a complaint with Network Solutions under its prior policy, Mr. Brown asked Ms. Modich if she would like to "buy" the domain name from him. Complaint, para. (ix)9.
The Complaint is sufficient under the notice pleading principles of the United States to allege that respondent has registered a domain name which is identical to the mark registered and used by complainant, that respondent appears to have no rights or legitimate interests in respect to the domain name at issue, and that respondent appears to have registered and used the domain name at issue in bad faith.
Respondent has not contested the allegations of the Complaint.
Discussion and Findings
Paragraph 15(a) of the Rules instructs the Panel as to the principles the Panel is to use in determining the dispute: "A Panel shall decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable." Since both the complainant and respondent are domiciled in the United States, the Panel will look to rules and principles of law of the United States.
Paragraph 4(a) of the Policy directs that the complainant must prove each of the following:
(1) that the domain name registered by the respondent is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and,
(2) that the respondent has no legitimate interests in respect of the domain name; and,
(3) the domain name has been registered and used in bad faith.
The domain name <americanvintage.com> is identical or confusingly similar to the trademark registered and used by complainant, AMERICAN VINTAGE. It also appears that the respondent has no rights or legitimate interests in the domain name.
With regard to bad faith, the Complaint states (Paragraph (ix)(3)):
I am not sure if the respondent originally intended to register and use the Domain Name in bad faith however I offer the following:
During a conversation with Mr. Brown, the owner, earlier in 1999, after he received notification of my complaint with Network Solutions, Mr. Brown asked me if I’d like to "buy" the Domain Name back from him. When I responded by saying "Since I do own the Trademark, I’d prefer to see what ‘Network Solutions’ recommends or decides," Mr. Brown replied, "Well you will probably have to sue me."
Paragraph 4(b) of the Uniform Dispute Resolution Policy identifies various circumstances that shall be considered evidence of the registration and use of a domain name in bad faith. The list does not appear to be exhaustive and we believe other evidence bearing on bad faith should also be considered.
Of the specific examples listed in the Policy, Paragraph 4(b)(i) is most applicable in this case and provides that "the following circumstances . . . shall be evidence of the registration and use of a domain name in bad faith: . . . circumstances indicating that you have registered or you have 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 . . . for valuable consideration in excess of the documented out-of-pocket costs directly related to the domain name."
Here, the evidence supporting complainant’s claim of bad faith includes (1) respondent’s offer to sell the Domain Name, (2) the respondent’s failure to make good faith use of the Domain Name, and (3) the respondent’s failure to submit any evidence to rebut complainant’s allegations.
It is not clear from the allegations regarding respondent’s offer to sell the Domain Name whether the domain name was registered or acquired "primarily for the purpose of selling" the domain name "for valuable consideration in excess of the documented out-of-pocket costs directly related to the domain name." Moreover, the complainant candidly admits she is "not sure if the respondent originally intended to register and use the Domain Name in bad faith." Nevertheless, without contrary evidence, it is possible to infer that the domain name was registered and used for that purpose.
That inference is supported by the respondent’s failure for a substantial period of time to make good faith use of the domain name for its business. "American Vintage" is an apt descriptive or suggestive term for antiques, the apparent business of respondent, based on his name, Big Daddy’s Antiques. Nevertheless, it is appears that respondent has done nothing with the Domain Name for over two years. While inconclusive, it is possible to infer from this failure of use that the domain name was registered without a bona fide intent to make good faith use.
Finally, we believe the respondent’s failure to present any evidence must be considered on the issue of bad faith. Mr. Brown’s comment, "Well, you will probably have to sue me," indicates a general awareness of his right to defend himself, thus his failure to do so seems particularly significant. In the Commencement Notification, respondent was informed that Paragraph 14 of the Rules for Uniform Domain Name Dispute Resolution Policy provides that the Panel "may draw such inferences from your default as it considers appropriate." It is a general principle of United States law that the failure of a party to submit evidence on facts in its control may permit the court to draw an adverse inference regarding those facts. Here, the potential evidence of good faith registration and use was in respondent’s control. Respondent’s failure to present any such evidence or to deny complainant’s allegations allows an inference that the evidence would not have been favorable to respondent.
In conclusion, the undisputed evidence permits a finding in complainant’s favor on each of the necessary elements of its claim. There is no evidence to the contrary.
For these reasons, the Panel decides that the domain name registered by respondent is identical or confusingly similar to the mark in which the complainant has rights, and that the respondent has no rights or legitimate interests in respect of the domain name, and that the respondent’s domain name was registered and used in bad faith.
Accordingly, the Panel requires that the registration of the domain name <americanvintage.com> be transferred to the complainant.
Dated: February 16, 2000