Generic Top Level Domain Name (gTLD) Decisions

The Complainant is Lush Ltd. , Poole, Dorset, United Kingdom ("Complainant") represented by Stephen M. Lane, Sim, Hughes, Ashton & McKay. The Respondent is Technology Education Center, Edmonton, AB, Canada ("Respondent").

The domain name at issue is "lushcosmetics.com" registered with Network Solutions, Inc.

The undersigned certifies that he has acted independently and impartially and to the best of his knowledge, has no known conflict in serving as a panelist in this proceeding.

Hon. James A. Carmody, as Panelist.

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on December 6, 2000; The Forum received a hard copy of the Complaint on December 11, 2000.

On December 8, 2000, Network Solutions, Inc. confirmed by e-mail to the Forum that the domain name "lushcosmetics.com" is registered with Network Solutions, Inc. and that the Respondent is the current registrant of the name. Network Solutions, Inc. has verified that Respondent is bound by the Network Solutions, Inc. 4.0 registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANNís Uniform Domain Name Dispute Resolution Policy (the "Policy").

On December 14, 2000, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 3, 2001 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondentís registration as technical, administrative and billing contacts, and to postmaster@lushcosmetics.com by e-mail.

Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the Forum transmitted to the parties a Notification of Respondent Default.

On January 8, 2001, pursuant to Complainantís request to have the dispute decided by a One Member panel, the Forum appointed the Hon. James A. Carmody as Panelist.

Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent." Therefore, the Panel may issue its Decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forumís Supplemental Rules and any rules and principles of law that the panel deems applicable, without the benefit of any Response from the Respondent.

The Complainant requests that the domain name be transferred from the Respondent to the Complainant.

The Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") state the following with regard to default cases:

In this case, Respondent has not submitted a response, and therefore this Panelist may infer, for the purposes of this decision, that the averments in the complaint are true. See Ziegenfelder Co. v. VMH Enterprises, Inc. D2000-0039 (WIPO Mar. 14, 2000) (finding that based on Respondentís failure to respond, the Panel draws two inferences: 1) that Respondent does not deny the facts asserted by Complainant, and 2) Respondent does not deny conclusions which the Complainant asserts can be drawn from the facts).

Moreover, based on the investigation, the panel takes note that Respondent registered the domain name in dispute on January 18, 1999.

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."

In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of the Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules.

Paragraph 4(a) of the Policy requires that the Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:

(1) the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;

(2) the Respondent has no rights or legitimate interests in respect of the domain name; and

(3) the domain name has been registered and is being used in bad faith.

The domain name lushcosmetics.com incorporates Complainantís entire LUSH mark. Therefore, the domain name in question is confusingly similar to the Complainantís mark LUSH under Policy  4(a)(i). See Quixtar Investments, Inc. v. Smithberger and QUIXTAR-IBO, D2000-0138 (WIPO Apr. 19, 2000) (finding that because the domain name <quixtar-sign-up.com> incorporates in its entirety the Complainantís distinctive mark, QUIXTAR, the domain name is confusingly similar); America Online, Inc. v. iDomainNames.com, FA 93766 (Nat. Arb. Forum Mar. 24, 2000) (finding that Respondentís domain name <go2AOL.com> was confusingly similar to Complainantís mark AOL).

Moreover, the domain name lushcosmetics.com is identical to the Complainantís mark LUSH COSMETICS. Policy  4(a)(i). Croatia Airlines v. Kwen Kijong, AF 0302 (eResolution Sept. 25, 2000) (finding that the domain name "croatiaairlines.com" is identical to the Complainant's trademark "Croatia Airlines"); Busy Body, Inc. v. Fitness Outlet Inc., D2000-0127 (WIPO Apr. 22, 2000) ("the addition of the generic top-level domain (gTLD) name ë.comí is likewise without legal significance since use of a gTLD is required of domain name registrants").

Complainant has registered the trademark LUSH in the U.S. and all over the world. Further, Complainant has used the LUSH COSMETICS mark in connection with its products for five years before registration of the domain name. Such long-standing use and the popularity of the mark throughout the world are sufficient to confer common law trademark rights in LUSH COSMETICS. See Winterson v. Hogarth, D2000-0235 (WIPO May 22, 2000) (finding that ICANN Policy does not require that Complainant have rights in a registered trademark and that it is sufficient to show common law rights); Bibbero Systems, Inc. v. Tseu & Assoc., FA 94416(Nat. Arb. Forum May 9, 2000) (finding common law rights in the mark BIBBERO as the Complainant, Bibbero Systems, Inc. had developed brand name recognition with this term by which the Complainant is commonly known).

Furthermore, Respondent is not commonly known by Complainantís marks. Policy  4(c)(ii). See Nokia Corp. v. Private, D2000-1271 (WIPO Nov. 3, 2000) (finding that the Respondent is not commonly known by the mark contained in the domain name where the Complainant has not permitted the Respondent to use the NOKIA mark and no other facts or elements can justify prior rights or a legitimate connection to the names "Nokia" and/or "wwwNokia").

Respondent has not used the domain name so far, as contended by Complainant. See Ziegenfelder Co. v. VMH Enterprises, Inc. D2000-0039 (WIPO Mar. 14, 2000) (finding that failure to provide a product or service or develop the site demonstrates that the Respondents have not established any rights or legitimate interests in the said domain name); State Fair of Texas v. State Fair Guides, FA 95066 (Nat. Arb. Forum July 25, 2000) (finding that the Respondentís failure to develop the site demonstrates a lack of legitimate interest in the domain name).

Respondentís registration and use of the domain name in bad faith. Policy  4(b)(i). See American Anti-Vivisection Society v. "Infa dot Net" Web Services, FA 95685 (Nat. Arb. Forum Nov. 6, 2000) (finding that "general offers to sell the domain name, even if no certain price is demanded, are evidence of bad faith"); Banca Popolare Friuladria S.p.A. v. Giovanni Zago, D2000-0793 (WIPO Sept. 3, 2000) (finding bad faith where the Respondent offered the domain names for sale).

registering the domain name. See DCI S.A. v. Link Commercial Corp., D2000-1232 (WIPO Dec. 7, 2000) (concluding that the Respondentís passive holding of the domain name satisfies the "bad faith" requirement of the Policy); Clerical Medical Investment Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that merely holding an infringing domain name without active use can constitute use in bad faith).

Having established all three elements required by the ICANN Policy Rule 4(a), it is the decision of the panel that the requested relief be granted.

Accordingly, for all of the foregoing reasons, it is ordered that the domain name, "lushcosmetics.com" be transferred from the Respondent to the Complainant.