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Latent Technology Group v. Bryan Fritchie [2000] GENDND 1005 (1 September 2000)


National Arbitration Forum

DECISION

Latent Technology Group, Inc. v. Bryan Fritchie

Claim Number: FA0007000095285

PARTIES

The Complainant is Latent Technology Group, Inc., Dallas, TX, USA ("Complainant"). The Respondent is Bryan Fritchie, Plano, TX, USA ("Respondent").

REGISTRAR AND DISPUTED DOMAIN NAME(s)

The domain name at issue is "HOGCALL.COM", registered with Network Solutions Inc ("NSI").

PANELIST(s)

The Panelist certifies that he or she has acted independently and impartially and to the best of his or her knowledge, has no known conflict in serving as the panelist in this proceeding.

Panelist is Judge Karl V. Fink (Retired).

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum ("The Forum") electronically on 07/25/2000; The Forum received a hard copy of the Complaint on 07/25/2000.

On 07/26/2000, NSI confirmed by e-mail to The Forum that the domain name "HOGCALL.COM" is registered with NSI and that the Respondent is the current registrant of the name. NSI has verified that Respondent is bound by the Network Solutions Service Agreement Version 5.0 and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s UDRP.

On 08/15/2000, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of 08/15/2000 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via e-mail, post and fax, and to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts by e-mail. It was also emailed to postmaster@hogcall.com.

A response was filed by Respondent.

On August 23, 2000, pursuant to Complainant’s request to have the dispute decided by a Single Member panel, The Forum appointed Judge Karl V. Fink (Ret.) as Panelist.

RELIEF SOUGHT

The Complainant requests that the domain name be transferred from the Respondent to the Complainant.

PARTIES’ CONTENTIONS

    1. Complainant

B. Respondent

FINDINGS

DISCUSSION

Paragraph 4(a) of the ICANN Uniform Domain Name Dispute Policy ("Policy") requires that the complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:

(1) the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;

(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.

Identical and/or Confusingly Similar

The domain name is identical to or confusingly similar to the mark HOG CALL for which Complainant has applied for registration. Since Respondent filed the application for that mark on Complainant’s behalf, Respondent has conceded that Complainant has the right to that mark. The mark registration was applied for after the domain name was registered and Complainant has not proven any earlier use of the mark. Complainant has not proven that Respondent had no right to register the domain name.

Rights or Legitimate Interests

Respondent has spent years developing web sites with information concerning the University of Arkansas Razorbacks. His registration of the domain name hogcall.com is consistent with that business activity and was done before Complainant’s application to register the trademark. Complainant has not proven that Respondent has no rights or legitimate interests in the domain name.

Registration and Use in Bad Faith

Complainant’s position is that Respondent registered the domain name in his name rather than in Complainant’s name and this is evidence of registration and use in bad faith

Complainant apparently had no rights in the mark when the domain name was registered.

Given the truncated nature of UDRP proceedings and the inability of the parties to fully litigate allegations of breach of fiduciary duty, breach of contract and the original rightful ownership of the domain name, Complainant has not proven that the domain name has been registered and is being used in bad faith. If, because of the nature of the claims, Complainant believes that it is entitled to own the domain name it should pursue its claims in a forum (e.g., court) that is more appropriate for such claims. See Document Technologies, Inc. v. International Electronic Communications Inc., Case No. D2000-0270 (WIPO June 6, 2000); Inter Continental Hotels Corp. v. Khalid Ali Soussi, Case No. D2000-0252 (WIPO July 5, 2000).

Complainant has failed to prove this element.

DECISION

Since Complainant has not proven the necessary elements, Complainant’s request for transfer of the domain name hogcall.com is denied.

Judge Karl V. Fink (Ret).
Dated: September 1, 2000


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