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AERO TURBINE, INC. v. MCAYMAN LIMITED [2000] GENDND 14 (28 February 2000)

National Arbitration Forum

DECISION
FA# 0002000093675

The above-entitled matter came on for an administrative hearing on February 28, 2000, before the undersigned on the Complaint of Aero Turbine, Inc., hereinafter referred to as "Complainant" against McAyman, Limited, hereinafter referred to as "Respondent." The complaint was signed by Lawrence H. Brinker, Vice President and General Counsel of Aero Turbine, Inc. A Response was filed by Chris Dumont, Quality Manager, on behalf of McAyman, Limited. In addition, Complainant filed a Rebutttal to Respondent’s Response.

Upon the written submitted record, the following Decision is made:

Procedural Findings

Domain Names: areoturbine.net;

Domain Name Register: Network Solutions;

Date of Domain Name Registration: 10/29/99;

Date Complaint Was Sent to Respondent In Accordance With Rule 2(a)02/10/00;

Response by Respondent: 02/14/00;

Rebuttal Response By Claimant: 02/16/00.

*All references to "Rule" and to ICANN’S Rules For Uniform Name Dispute Resolution Policy.

The Complainant filed its Complaint with the National Arbitration Forum on February 10, 2000. After reviewing the Complaint for administrative compliance, the Forum transferred the Complaint to the Respondent in compliance with Rule 2(A), and the administrative proceeding was commenced pursuant to Rule4(a). In compliance with Rule 4(a), the Forum immediately notified the above Registrar, ICANN, and the Complainant that the administrative proceeding had commenced.

The Respondent filed a response on February 14, 2000, to which the Complainant filed a Rebuttal response on February 16, 2000. Respondent had registered the domain name with Network Solutions, the entity that is the Registrar of the domain name, on October 29, 1999, as "aeroturbine.net." By registering its domain name with Network Solutions, the Respondent agreed to make any dispute regarding its domain name through ICANN’s Uniform Domain Dispute Resolution Policy.

Findings of Fact

I have examined all of the pertinent documents and find as follows:

1. The Complaint is based on the following trademark as well as service mark registered as of July 13, 1999, and the corporate name of the Complainant: aeroturbine and Corporate Name: Aero Turbine, Inc.
2. The registered domain name is identical to or confusingly similar to Complainant’s registered trademark as well as its legal corporate name. The Complainant has used its trademark service mark and corporate name for at least two years prior to Respondent’s registration. Claimant has used its corporate and trademark names continuously and extensively in interstate and international commerce in connection with advertising and sale of its goods and services. It has also invested substantial sums of money in developing and marketing its services. Respondent was well aware of these facts as a result of sending its purchase order for a Rolls Royce Engine to Complainant dated December 11, 1998.
3. The Respondent does not have any rights or legitimate interests in respect of the domain name that is the subject of the Complaint. The Respondent had known of the mark when dealing with Complainant on a purchase order in previous negotiations and to attempt to misleadingly divert customers to do business with it and to subvert Complainants’ use of its service mark.
4. It is patently clear that the domain name should be considered as having been registered and being intended to be used in bad faith. In effect, the Respondent has registered the domain name primarily for the purpose of disrupting the business of the Complainant and by using the domain name to attract for commercial gain, Internet users by creating the likelihood of confusion with Complainant’s mark and affiliation as well as its corporate name.

Conclusions of Law

The undersigned certifies that he has acted independently and has no known conflict of interest to serve as the arbitrator (One Arbitrator Panel) in this proceeding.

Having been duly selected and being impartial, the undersigned has made the above Findings Of Fact and concludes therefore that the Complainant’s rights are superior to those of Respondent as a matter of law and is entitled to the domain name in controversy and that Respondent has acted improperly and is using the domain name in bad faith.

Decision

Based upon the above Findings of Fact and Conclusions Of Law and pursuant to Rule 4(i), it is decide as follows:

I FIND FOR THE COMPLAINANT AND ORDER THE TRANSFER OF THE RESPONDEN’T S DOMAIN NAME TO THE COMPLAINANT AS FOLLOWS:

"aeroturbine.net"

Dated: February 28, 2000, by Judge Henry X. Dietch (Ret.), Arbitrator