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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Drexel University v. David Brouda

Case No. D2001-0067

 

1. The Parties

1.1 The Complainant is Drexel University, a non-profit university organized and existing under the laws of the Commonwealth of Pennsylvania, United States of America, having its principal place of business at 3200 Chestnut Street, Philadelphia, Pennsylvania 19104, United States of America.

1.2 The Respondent is David Brouda, an individual having an address at 2801 Aspen Circle, Blue Bell, Pennsylvania, United States of America.

 

2. The Domain Name and Registrar

The domain name at issue is <drexel.org>, which domain name is registered with Network Solutions, Inc. ("NSI"), based in Herndon, Virginia, United States of America.

 

3. Procedural History

3.1 A Complaint was submitted electronically to the World Intellectual Property Organization Arbitration and Mediation Center (the "WIPO Center") on

January 12, 2001, and the signed original together with four copies forwarded by express courier was received on January 15, 2001. An Acknowledgment of Receipt was sent by the WIPO Center to the Complainant, dated January 22, 2001.

3.2 On January 23, 2001, a Request for Registrar Verification was transmitted to the registrar, NSI, requesting it to: (1) confirm that the domain name at in issue is registered with NSI; (2) confirm that the person identified as the Respondent is the current registrant of the domain name; (3) provide the full contact details (i.e., postal address(es), telephone number(s), facsimile number(s), e-mail address(es)) available in the registrar’s Whois database for the registrant of the disputed domain name, the technical contact, the administrative contact and the billing contact; (4) confirm that the Uniform Domain Name Dispute Resolution Policy (the "Policy") is in effect; (5) indicate the current status of the domain name.

3.3 On January 24, 2001, NSI confirmed by reply e-mail that the domain name at issue is registered with NSI, is currently in active status, and that the Respondent is the current registrant of the name. The registrar also forwarded the requested Whois details, and confirmed that the Policy is in effect.

3.4 The WIPO Center determined that the Complaint was not sufficient, and on

January 26, 2001, the WIPO Center issued its Request for Amendment of Complaint.

3.5 On February 9, 2001 the WIPO Center received an Amendment to the Complaint in electronic format, and on February 13, 2001, the WIPO Center received the Amendment in hard copy.

3.6 The WIPO Center determined that the Complaint as amended satisfied the formal requirements of the Policy, the Rules for Uniform Domain Name Dispute Resolution Policy (the "Uniform Rules") and the Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the "Supplemental Rules"). The Panel has independently determined and agrees with the assessment of the WIPO Center that the Complaint is in formal compliance with the requirements of 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 Uniform Rules, and the Supplemental Rules. The required fees for a single-member Panel were paid on time and in the required amount by the Complainant.

3.7 No further formal deficiencies having been recorded, on February 15, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification") was transmitted to the Respondent (with copies to the Complainant, NSI and ICANN), setting a deadline of March 6, 2001, by which the Respondent could file a Response to the Complaint. The Commencement Notification was transmitted to the Respondent by courier and by e-mail to the e-mail addresses indicated in the Complaint. In any event, evidence of proper notice is provided by the evidence in the record of the Respondent’s participation in these proceedings.

3.8 A Response was received on February 21, 2001. An Acknowledgment of Receipt (Response) was sent by the WIPO Center on February 21, 2001.

3.9 On March 13, 2001, having received M. Scott Donahey’s Statement of Acceptance and Declaration of Impartiality and Independence, the WIPO Center transmitted to the parties a Notification of Appointment of Administrative Panel and Projected Decision Date, in which M. Scott Donahey was formally appointed as the Sole Panelist. The Projected Decision Date was March 26, 2001. The Sole Panelist finds that the Administrative Panel was properly constituted and appointed in accordance with the Uniform Rules and the WIPO Supplemental Rules.

 

4. Factual Background

4.1 Drexel University was founded in 1891 as the Drexel Institute of Art, Science and Industry. It became Drexel Institute of Technology in 1936, and Drexel University in 1970.

4.2 Beginning in 1997, Complainant registered marks incorporating the DREXEL name with the United States Patent Office ("USPTO").

4.3 In 1998, Complainant launched its Internet web site at <drexel.edu>.

4.4 Complainant advertises and promotes the DREXEL mark and name through its web site, national magazines, and newspapers and has expended substantial amounts of money in this effort.

4.5 Respondent registered the domain name <drexel.org> on October 4, 1999. In the fall and winter of 1999 Respondent used the domain name at issue for email communications and web page presentation for their Drexel University Electrical Engineering Senior Design Project. Respondent has offered the domain name at issue to friends for use as an email address.

4.6 In addition to the use of the domain name at issue for email purposes, Respondent currently uses the web site to resolve to a web site at which the words "Welcome to drexel.org" appear above a copy of a cease and desist letter sent by Complainant to Respondent over a background of the Philadelphia skyline. Complaint, Annex G.

4.7 Upon being queried by Complainant as to what Respondent wanted in order to surrender the domain name at issue to Complainant, Respondent requested a return of his tuition money paid plus $1 plus an apology for having had a lawyer make the initial contact regarding return of the name. The current annual tuition at Drexel is approximately US$15,000.

 

5. Parties’ Contentions

5.1 Complainant contends that Respondent has registered as a domain name a mark which is confusingly similar to the service mark registered and used by Complainant, that Respondent has no rights or legitimate interests in respect of the domain name at issue, and that Respondent has registered and is using the domain name at issue in bad faith.

5.2 Respondent contends that Complainant's marks do not consist of the word DREXEL, but only include the word DREXEL, that DREXEL is also a surname and constitutes several geographical locations, that Respondent has rights or legitimate interests in respect of the domain name at issue, and that the domain name at issue was not registered and is not being used in bad faith.

 

6. Discussion and Findings

6.1 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."

6.2 Since both the Complainant and Respondent are domiciled in the United States, and since United States’ courts have recent experience with similar disputes, to the extent that it would assist the Panel in determining whether the Complainant has met its burden as established by Paragraph 4(a) of the Policy, the Panel shall look to rules and principles of law set out in decisions of the courts of the United States.

6.3 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 rights legitimate interests in respect of the domain name; and,

(3) that the domain name has been registered and is being used in bad faith.

6.4 While it is true that Complainant has registered the DREXEL name only as part of an extended service mark registration (DREXEL CO:OP: "THE ULTIMATE INTERNSHIP;" DREXEL UNIVERSITY MORE THAN A DEGREE OF SUCCESS; DREXEL DRAGONS; DREXEL UNIVERSITY; DREXEL.COM), the mark DREXEL has been in general use since 1891, has acquired substantial secondary meaning, and is a common law trademark in its own right.

6.5 The Panel finds that the domain name at issue is confusingly similar to a mark in which Complainant has rights. EFG Bank European Financial Group SA v. Jacob Foundation, ICANN Case No. D2000-0036

6.6 The Panel finds that Complainant has alleged that Respondent has no right or legitimate interest in respect of the domain name at issue. This shifts the burden to Respondent to show that it has rights or legitimate interests in respect of the domain name at issue. See, e.g., Policy, ¶4(c).

6.7 Respondent has produced evidence that he has used the domain name at issue to provide free email addresses for students and graduates of Drexel University. However, rights or legitimate interests cannot be created where the user of the domain name at issue would not choose such a name unless he was seeking to create an impression of association with the Complainant. The British Broadcasting Corporation v. Jaime Renteria, ICANN Case No. D2000-0050.

6.8 The Panel finds that the Respondent offered to transfer the domain name to respondent in return for consideration far in excess of Respondent's out of pocket costs associated with the domain name. Under paragraph 4(b)(i) of the Policy, this constitutes bad faith registration and use. World Wrestling Federation v. Bosman, ICANN Case No. D99-0001. Accordingly, the Panel finds that Respondent has registered and is using the domain name at issue in bad faith.

 

7. Decision

For all of the foregoing reasons, the Panel decides that the domain name registered by Respondent is confusingly similar to the mark in which the Complainant has rights, that the Respondent has no rights to or legitimate interests in respect of the domain name at issue, and that the Respondent's domain name has been registered and is being used in bad faith. Accordingly, pursuant to Paragraph 4(i) of the Policy, the Panel requires that the registration of the domain name <drexel.org> be transferred to the Complainant.

 


 

M. Scott Donahey
Sole Panelist

Dated: March 20, 2001

 

Источник информации: https://www.internet-law.ru/intlaw/udrp/2001/d2001-0067.html

 

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