Generic Top Level Domain Name (gTLD) Decisions

Complainant is Glimcher Holdings Limited Partnership, Columbus, OH, USA ("Complainant") represented by Randolph W. Alden, of Alden, Tayhlor & Durkin, LLC. Respondent is NetPlus Communications Inc., Lexington, OH, USA ("Respondent") .

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

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

Ralph Yachnin, as Panelist.

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on April 9, 2001; the Forum received a hard copy of the Complaint on April 10, 2001.

On April 10, 2001, Network Solutions, Inc. confirmed by e-mail to the Forum that the domain name "rivervalleymall.com" is registered with Network Solutions, Inc. and that Respondent is the current registrant of the name. Network Solutions, Inc. has verified that Respondent is bound by the Network Solutions, Inc. 5.0 registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the "Policy").

On April 13, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of May 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 Respondent’s registration as technical, administrative and billing contacts, and to postmaster@rivervalleymall.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 May 11, 2001 pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed Judge Ralph Yachnin 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 Forum’s Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any Response from Respondent.

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

B. Respondent has not submitted a response in this matter.

Complainant, Glimcher Holdings Ltd., owns the common law mark RIVER VALLEY MALL, which it has used continuously since 1994 in connection with its retail shopping mall. Complainant also maintains a trademark registration for its RIVER VALLEY MALL mark with the Ohio Secretary of State.

Respondent, NetPlus Communications, Inc., registered the disputed domain name July of 1998. Respondent currently maintains 49 domain name registrations, many of which are dormant. To date, Respondent has not used the disputed domain name for any purpose.

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.

Complainant’s rights are evidenced by its common law mark, RIVER VALLEY MALL. See Winterson v. Hogarth, D2000-0235 (WIPO May 22, 2000) (finding that ICANN Policy does not require that the Complainant have rights in a registered trademark and that it is sufficient to show common law rights); see also Smart Design LLC v. Carolyn Hughes, D2000-0993 (WIPO Oct. 18, 2000) (holding that ICANN Policy 4(a)(i) does not require Complainant to demonstrate ‘exclusive rights,’ but only that complainant has a bona fide basis for making the complaint in the first place).

Respondent’s domain name, rivervalleymall.com, is identical to Complainant’s well-established mark. See Dr. Karl Albrecht v. Eric Natale, FA 95465 (Nat. Arb. Forum Sept. 16, 2000) (Finding Respondent’s domain name, karlalbrecht.com, identical to Complainant’s common law mark); see also Football Ass’n Ltd. v. UKIP, D2000-1359 (WIPO Dec. 15, 2000) (finding that domain name "facup.com" is clearly identical to the FA CUP trademark belonging to Complainant).

Moreover, a reasonable Internet user would assume the disputed domain name is affiliated with Complainant’s mark. See Treeforms, Inc. v. Cayne Indus. Sales Corp., FA 95856 (Nat. Arb. Forum Dec. 18, 2000) (finding that confusion would result when Internet users, intending to access Complainant’s web site, think that an affiliation of some sort exists between the Complainant and the Respondent, when in fact, no such relationship would exist).

As a result, the Panel finds that Policy ¶ 4(a)(i) has been sufficiently satisfied.

Respondent is not commonly known by the disputed domain name, nor has Respondent used the domain name in connection with a legitimate noncommercial or fair use. See Hartford Fire Ins. Co. v. Webdeal.com, Inc., FA 95162 (Nat. Arb. Forum Aug. 29, 2000) (finding that Respondent has no rights or legitimate interests in domain names because it is not commonly known by Complainant’s marks and Respondent has not used the domain names in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use).

Furthermore, Respondent asserted no rights or legitimate interests in the disputed domain name; therefore, the Panel is free to conclude Respondent has no such rights or legitimate interests. See Boeing Co. v. Bressi, D2000-1164 (WIPO Oct. 23, 2000) (finding no rights or legitimate interests where the Respondent has advanced no basis on which the Panel could conclude that it has a right or legitimate interest in the domain names and no use of the domain names has been proven); see also Canadian Imperial Bank of Commerce v. D3M Virtual Reality Inc. and D3M Domain Sales, AF-0336 (eResolution Sept. 23, 2000) (finding no rights or legitimate interest where no such right or interest is immediately apparent to the Panel and Respondent has not come forward to suggest any such right or interest that it may possess).

Respondent has not used the disputed domain name since its registration, which demonstrates Respondent’s bad faith. See Clerical Med. Inv. 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); Body Shop Int’l PLC v. CPIC NET and Hussain, D2000-1214 (Nov. 26, 2000) (finding bad faith where (1) Respondent failed to use the domain name and (2) it is clear that Respondent registered the domain name as an opportunistic attempt to gain from the goodwill of the Complainant);

In addition, there is no way for Respondent to legitimately use the disputed domain name without inferring some misguided association with Complainant’s mark. See Sony Kabushiki Kaisha v. Inja, Kil, D2000-1409 (WIPO Dec. 9, 2000) (finding that bad faith registration and use where it is "inconceivable that the respondent could make any active use of the disputed domain names without creating a false impression of association with the Complainant").

Having established all three elements required under ICANN Policy, this Panelist concludes that the requested relief shall be and is hereby granted.

Thus, it is Ordered that the domain name, rivervalleymall.com, be transferred from Respondent to Complainant.