Generic Top Level Domain Name (gTLD) Decisions

P. O. Box 50191
Minneapolis, Minnesota 55405 USA
www.arbitration-forum.com

NetGrocer, Inc.

1112 Corporate Road

North Brunswick, New Jersey 08902

COMPLAINANT,

VS.

Harry Tahiliani

1201 South Alma School Road

Meza, Arizona 85210

RESPONDENT.

___________________________________________

The above entitled matter came on for an administrative hearing on March 22, 2000 before the undersigned on the Complaint of NetGrocer, Inc., hereafter "Complainant", against Harry Tahiliani, hereafter "Respondent". Complainant was represented by Mark N. Mutterperl, Fulbright & Jaworski, 666 Fifth Avenue, New York, New York 10103. Respondent was represented by Steven Elowitz, Franklin Management Consultants, 1201 S. Alma School Road, Meza, Arizona 85210. Upon the written submitted record, the following DECISION is made:

PROCEDURAL FINDINGS

Domain Name: NETGROCER.NET Domain Name Registrar: Network Solutions Domain Name Registrant: Harry Tahiliani Date of Domain Name Registration: March 27, 1998 Date Complaint Filed: February 14, 2000 Due Date for a Response: March 13, 2000 Respondent did submit a response to the Complaint. Date of Commencement of Administrative Proceeding in Accordance with Rule 2(a)l and Rule 4(c): February 17, 2000 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 February 17, 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 the above Registrar, Network Solutions, the Internet Corporation for Assigned Names and Numbers (ICANN), and the Complainant that the administrative proceeding had commenced. Respondent did submit a response to The Forum within twenty (20) days pursuant to Rule 5(a). On March 27, 1998, Respondent registered the domain name "NETGROCER.NET" with Network Solutions, the entity that is the Registrar of the domain name. 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

In a Memorandum by Respondent dated January 5, 1998 he requested registration of NETGROCER.COM and NETGROCER.NET as domain names. Respondent was unable to register the domain name NETGROCER.COM because Complainant had registered that domain name on October 27, 1995.

When respondent registered NETGROCER.NET on March 27, 1998 he was on notice of the registration and existence of NETGROCER.COM. Therefore, Respondent knew or should have known of the existence of NetGrocer, Inc. and NETGROCER.COM when it created its domain name on March 27, 1998.

Respondent registered the domain name primarily for the purpose of disrupting the business of a competitor.

By using the domain name Respondent intentionally attempted to attract for commercial gain, internet users to its website 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 website or location of a product or service.

The Registered domain name, "NETGROCER.NET", is identical or confusingly similar to the trademark or service mark in which the Complainant has rights and the Respondent does not have any right or legitimate interests in respect of the domain name, "NETGROCER.NET", which is the subject of the complaint.

The exclusivity of Complainant’s service mark is protected under United States law.

Respondent registered and used the name in bad faith and no evidence has been presented that Respondent has any right or legitimate interest to the domain name as provided in Rule 4(c).

Complainant’s prayer for relief requests that the domain name be cancelled.

Respondent registered the domain name primarily for the purpose of disrupting the business of a competitor.

Respondent registered and used the domain name in bad faith as evidenced by circumstances that by using the domain name Respondent intentionally attempts to attract, now and in the future, for commercial gain, internet users to its website by creating a likelihood of confusion with the Complainant’s mark as a source, sponsorship, affiliation, or endorsement of its website or location or of a product on its website.

Under ICANN’s Uniform Domain Name Dispute Resolution Policy Complainant has proven that the domain name should be cancelled.

THE UNDERSIGNED DIRECTS THAT THE DOMAIN NAME "NETGROCER.NET" REGISTERED BY RESPONDENT BE CANCELLED.