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Mitchell D. Salzman v. Sam Nassab [2000] GENDND 765 (26 July 2000)

National Arbitration Forum

DECISION

FORUM FILE NO: FA0006000095014

Mitchell D. Salzman

COMPLAINANT

vs.

Sam Nassab

RESPONDENT

The above-entitled matter came on for an administrative hearing on July 24, 2000 before the undersigned on the Complaint of Mitchell D. Salzman, hereafter "Complainant", against Sam Nassab, "Respondent". There was no representation on behalf of either party. Upon the written submitted record, the following decision is made:

PROCEDURAL FINDINGS

Domain Name: LITTLEFOLKART.COM

Domain Name Registrar: Network Solutions

Domain Name Registrant: Sam Nassab

Date Complaint Filed: June 21, 2000.

Date of Commencement of Administrative Proceeding in Accordance with Rule 2(a) and Rule 4(c): June 26, 2000.

Due date for a Response: July 17, 2000. Respondent did submit a response to the Complaint.

Remedy Requested: Transfer of the domain name to Complainant.

After reviewing the Complaint and determining it to be in administrative compliance, the National Arbitration Forum (The Forum) forwarded the Complaint to the Respondent on June 26, 2000 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, the Internet Corporation for Assigned Names and Numbers (ICANN), and the Complainant that the administrative proceeding had commenced.

From the information submitted, it appears that the Respondent originally registered the domain name LITTLEFOLKART.COM with Network Solutions on or about August 20, 1999. By such registration, the Respondent agreed to resolve any dispute regarding his domain name through ICANN's Rules for Uniform Domain Name Dispute Resolution Policy.

FINDINGS OF FACT

1. That Complainant is the owner of Little Folk Art Store located in Santa Monica, California, which said store has been in the business of children's furniture since 1990.
2. On February 25, 1997, the United States Patent and Trademark Office registered the LITTLE FOLK ART mark which remains in full force and effect.
3. Complainant started a mailer service for his business in the form of newsletter/catalog 5 years ago under the name little folkster.
4. It is Complainant's contention that the name little folkster is similar to Little Folk Art and that the newsletter/catalog mailer service has resulted in the name Little Folk Art being associated with children's interests.
5. Complainant states that the domain name is registered and is being used in bad faith because the Respondent offered to sell the domain name to Complainant for $150,000 in the summer of 1999.
6. Respondent is a manufacturer of Jacquard lace textile curtains and tablecloths located in Iran with branch offices in England and Germany. As such, Respondent wholesales products throughout the world except for the United States due to U.S. sanctions against Iranian goods.
7. For the past year, Respondent has been working on creating designs for a new children's lace collection.
8. Respondent states that he purchased the domain name for use to showcase this children's lace collection on the Internet.
9. Respondent states that he has not yet displayed these products on the Internet because the design and development of this new line of products is a time consuming process.
10. Respondent states that he did not purchase the domain name with the intention of reselling it to Complainant.
11. Respondent states that he responded to Complainant's inquiry about the name only as a courtesy and, after discussion with his business associates, calculated their expenses up to that point and provided Complainant with the opportunity to reimburse them for those expenses in exchange for the domain name.

On October 24, 1999, the Internet Corporation for Assigned Names and Numbers ("ICANN") adopted the Uniform Domain Name Dispute Resolution Policy which sets forth the elements that a complainant must prove to show that a respondent has registered and used a domain name in bad faith. Specifically, the complainant must prove each of the following:

1. Respondent's domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights;
2. Respondent has no rights or legitimate interests in respect of the domain name;
3. Respondent has registered and is using the domain name in bad faith.

It is the opinion of the undersigned, that Complainant has not met the burden of proof with respect to each of the above elements for the following reasons:

which the Complainant has rights.

2 - The Respondent has demonstrated his right or legitimate interest in the domain name. Specifically, the domain name is being used by the Respondent for a bona fide offering of goods or services.

3 - The Respondent has not registered the name in bad faith. Section 4(b) of the ICANN Uniform Domain Name Dispute Policy provides that evidence of bad faith registration and use can consist of the following circumstances:

1. circumstances indicating that the Respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of the complainant for valuable consideration in excess of documented out-of-pocket costs directly related to the domain name; or
2. the respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the respondent has engaged in a pattern of such conduct; or
3. the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
4. by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to the respondent's web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of respondent's web site or location or of a product of service on the respondents web site or location.

Complainant has not shown that the Respondent has registered or used the domain name for any of the purposes set out above. The fact that he responded to Complainant's inquiry about the name and the fact that he may have asked for more than his out-of-pocket expenses in exchange for the domain name is not sufficient without some evidence that this was his primary purpose in registering the domain name.

CONCLUSION

The undersigned certifies that he has acted independently and has no know conflict of interest to serve as the Arbitrator in this proceeding. Having been duly selected, and being impartial, the undersigned makes the following findings and conclusions:

1. The domain name LITTLEFOLKART.COM, registered to the Respondent is identical to Complainant's service mark.
2. The Respondent has demonstrated a right or legitimate interests in said name.
3. Respondent did not register, acquire or use the domain name in bad faith.

DECISION

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

That the Complainant's request that the domain name LITTLEFOLKART.COM be transferred is denied.

Dated: July 26, 2000, by Judge Daniel B. Banks, Jr., Arbitrator.