Generic Top Level Domain Name (gTLD) Decisions

THE NATIONAL ARBITRATION FORUM
Post Office Box 50191
Minneapolis, Minnesota 55405

Calstore.com, a Division of
Saral Capital, Inc.
2 E. Valley Blvd. #1C
Alhambra, CA 91801

Complainant

vs

Calstore.net, a Division of Infodrive

8, Ho-Chi-Minh Sarani
Calcutta, WB 700071, India

Despondent

File No. 94206

The above entitled matter came on to be heard for an administrative hearing on March 20, 2000, before the undersigned arbitrator in accordance with Rule 3(b)(i) of ICANN’s Uniform Domain Name Dispute Resolution Policy and Rules. The arbitrator certifies that he has no conflict of interest with any of the parties to this dispute. After due consideration of the written record as submitted, the following decision is made:

PROCEDURAL FINDINGS

Domain Name:Calstore.net

Domain Registrant:InfodriveDate: Dec 15, 1999

Domain Registrar:Network Solutions, Inc.

This action was commenced by the Complainant’s filing its complaint with the National Arbitration Forum (The Forum) on February 23, 2000. Thereafter, following a compliance review made in accordance with ICANN Rule 4, all necessary parties were duly notified of the commencement of the administrative proceedings. In due time the Respondent filed its Response.

FINDINGS OF FACT

1. The Complainant has its office and does business in Alhambra, California, whereas the Respondent has its office and does business in Calcutta, India.
   
   
2. The Complainant registered its service mark " CAL STORE" with the State of California on August 30, 1999, indicating that it had been using the mark since January 1, 1999. Its stated business was offering financial, postal and computer software services. In its complaint, Complainant stated it had been using "CAL STORE´ since 1995.
   
   
3. The Respondent has been in business for sometime having registered other domain names at least as early as March, 1999. At some time in 1999, Respondent engaged in setting up an on-line shopping mall consisting of 50 shops in the City of Calcutta, India. A brochure explaining its business plan was attached to its Response.
   
   
4. Both the Complainant and Respondent attempted to register the subject domain name on December 15, 1999. Ultimately, the domain name was issued to the Respondent, Infodrive by Network Solutions Registration Services.
   
   
5. On the same day the Respondent was granted the domain name the Complainant was notified that its request was denied.
   
   
6. The Complainant claimed to have contacted the Infodrive office and that the Respondent’s administrator, Rakesh Saraf, orally offered to sell the domain name for a very high price. This was vehemently denied by the Respondent who stated that he had never had any dialogue with the Complainant.

CONCLUSION

While both parties have obvious reasons for wanting to use the domain name, to wit, one is in the State of California and the other is in the City of Calcutta, the Complainant has the burden of making out its case for canceling or transferring the name. To do so, it must establish that :

1. The registered domain name is identical or confusingly similar to a trademark

or service mark in which the Complainant has rights.

2. The Respondent does not have rights or legitimate interests in respect of the

domain name.

3. The domain name should be considered as having been registered and used in

bad faith.

As indicated above, both parties have logical reasons for wanting to use the domain name. The fact that, even though a world apart, both applied to register at the almost identical moment would be an indication that neither knew of the other’s activities. There is no reason why either should have been aware of the other. The Complainant does not claim that the Respondent is attempting to misleadingly divert consumers or to tarnish its service mark. Nor has the Complainant proven anything which would establish that the Respondent acted in bad faith in registering the domain name.

DECISION

Complainant having failed to establish items (2) and (3) as set forth above, the Complaint is denied and the Respondent should be allowed to use the domain name.

Arbitrator

Louis Condon

March 20, 2000

Charleston, SC