Generic Top Level Domain Name (gTLD) Decisions

COLORADO PRIME CORPORATION,

COMPLAINANT,

vs.

GERALD LINDEN,

RESPONDENT.

DECISION
Forum File No.: FA# 000300004343

______________________________________

The above entitled matter came on for an administrative hearing on March 21 ,2000, before the undersigned on the Complaint of COLORADO PRIME CORPORATION, hereafter "Complainant", against GERALD LINDEN, hereafter "Respondent". Complainant was represented upon the written submitted record by Pauline C. Ung, Esq., Koerner Silberberg & Weiner, L.L.P., 112 Madison Ave., 3^rd Floor, New York, New York 10016. Respondent has filed no Response. Upon the written submitted record, the following DECISION is made:

PROCEDURAL FINDINGS

Domain Name: coloradoprime.com

Domain Name Registrar: Network Solutions, Inc.

Domain Name Registrant: Gerald Linden

Date of Domain Name Registration: October 27, 1998

Date of Complaint Filed: March 23, 2000

Date of Commencement of Administrative Proceeding in Accordance with Rule 2(a) and Rule4(c): March 24, 2000

Due date for a Response: April 13, 2000

After reviewing the Complaint, and determining it to be in administrative compliance, the National Arbitration Forum (The Forum) forwarded the Complaint to Network Solutions, Inc. and the Internet Corporation for Assigned Names and Numbers ("ICANN"), in compliance with Rule 2(a), and the administrative proceeding was commenced pursuant to Rule 4(c). In compliance with Rule 4(d), the Forum immediately notified Network Solutions, Inc., Respondent, ICANN, and the Complainant that the administrative proceeding had commenced. Respondent did not submit a response to the Forum within twenty (20) days pursuant to Rule 5(a).

On October 27, 1998, Respondent registered the domain name "coloradoprime.com" with Network Solutions, the entity that is the Registrar of the domain name. Network Solutions verified that Respondent is the Registrant for the domain name "coloradoprime.com", and that further by registering its domain name with Network Solutions, Respondent agreed to resolve any dispute regarding its domain name through ICANN’s rules for Uniform Domain Name Dispute Resolution Policy, and the Uniform Domain Name Dispute Resolution Policy.

FINDINGS OF FACT

1. Complainant is the holder of a trademark "Colorado Prime" (the "Mark") which it registered with the United States Patent and Trademark Office in 1982. It has used that Mark continuously since that date.
2. The domain name is "coloradoprime.com". The domain name, except for a space and capitalization, is identical to the Mark.
3. Respondent, after registering the domain name, was contacted by counsel for Complainant. Respondent was asked to cease using the domain name and advised of the pre-existing Mark. Shortly before the letter from counsel, the Complainant had apparently entered into discussions via e-mail with Respondent concerning the sale of the domain name. The record is silent as to communications between the parties after that date.
4. There is no evidence of use of the domain, but the registration is "active" according to Network Solutions.
5. The correspondence, as submitted by Complainant is somewhat troublesome, since it indicates communications concerning this problem began and then ceased in December of 1998. The correspondence also could be read to suggest that the Complainant contacted the Respondent. Nevertheless, although given the opportunity to respond to Complainant’s allegation that Respondent initially contacted Complainant and offered to sell the domain name has not been challenged. Respondent chose to refuse mail and filed no submission.

CONCLUSIONS

6. Respondent’s registration clearly violates the provisions of Paragraph 4 (a) of the ICANN Policies. First, of course, the domain name is identical, except for punctuation, with the Complainant’s Mark. Paragraph 4 (a) (i). The Respondent has "no rights or legitimate interests in respect of the domain name." Paragraph 4(a)(ii). As the Complainant’s exhibits show, immediately following registration, Complainant contacted Respondent and asserted that the domain name was identical to the Mark. Further, there is no evidence that the Respondent has ever used the domain name for any business activity.

Finally, and even though the Respondent has never used the domain

name for any business activity, the evidence of registration in bad faith is present. At Paragraph 4(b)(i) of the ICANN Policies, evidence of bad faith includes evidence that the domain name has been registered "primarily for the purpose of selling ... the domain name ... to ... the owner of the trademark ..." In this case, the e-mail correspondence evicneces that the Respondent negotiated to sell the domain name for $3,000. Since Respondent has no legitimate interest in the name — and has made no use of the domain name — the evidence presented clearly shows the Respondent is a "cybersquatter."

DECISION

Based upon the above findings and conclusions, and pursuant to Rule 4(i), it is decided as follows:

THE UNDERSIGNED DIRECTS THAT THE DOMAIN NAME "coloradoprime.com" REGISTERED BY RESPONDENT BE TRANSFERRED TO COMPLAINANT. .

Dated: April 24, 2000, by R. Glen Ayers, Jr. (formerly United States Bankruptcy Judge), Arbitrator

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