Generic Top Level Domain Name (gTLD) Decisions

Complainant is Michael K. Ouyang ADC Telecommunications, Inc., Minnetonka, MN, USA ("Complainant") represented by Scott W. Johnston, of Merchant & Gould, P.C. Respondent is CPIC Net, Closter, NJ, USA ("Respondent").

The domain name at issue is "adcbroadband.net" registered with Network Solutions, Inc.

On May 16, 2001, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed James P. Buchele as Panelist. The undersigned certifies that he has acted independently and impartially and to the best of his knowledge, has no known conflict in serving as Panelist in this proceeding.

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on April 11, 2001; the Forum received a hard copy of the Complaint on April 12, 2001.

On April 17, 2001, Network Solutions, Inc. confirmed by e-mail to the Forum that the domain name "adcbroadband.net" 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. 4.0 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 17, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of May 7, 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@adcbroadband.net 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.

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.

A. Complainant alleges the following:

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

Complainant, ADC Telecommunications, Inc., owns numerous federal registrations for the marks ADC, ADC TELECOMMUNICATIONS and ADC THE BROADBAND COMPANY as well as other ADC trademark registrations. Complainant and its predecessors in interest have used the ADC mark in commerce since August of 1943 in connection with the promotion, marketing and sale of its telecommunication and communication goods and services.

Respondent, CPIC Net, registered the disputed domain name in September of 2000. Complainant attempted to contact Respondent several times concerning Respondent’s use of the disputed domain name, to which Respondent has continually requested an amount that is greater than its out-of-pocket costs. Respondent is known by at least twenty "handles" with at least four different phone numbers, three fax numbers and eleven email addresses. To date, Respondent has not used the disputed domain name for any purpose other than to offer it for sale.

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 various federal registrations for its ADC marks.

The Panel finds that Respondent’s domain name, adcbroadband.net, is confusingly similar because the domain name fully incorporates Complainant’s ADC mark. See NIIT Ltd. v. Parthasarathy Venkatram, D2000-0497 (WIPO Aug. 4, 2000) (finding that the "domain name ‘myniit.com,’ which incorporates the word NIIT as a prominent part thereof, is confusingly similar to the Complainant’s trade name and trademark NIIT"); see also Body Shop Int’l PLC v. CPIC NET and Hussain, D2000-1214 (Nov. 26, 2000) (finding that the domain name <bodyshopdigital.com> is confusingly similar to the Complainant’s trademark <THE BODY SHOP>).

Moreover, the disputed domain name is so confusingly similar a reasonable Internet user would assume that the domain name is somehow associated with Complainant company and its family of marks. See Surface Protection Indus., Inc. v. The Webposters, D2000-1613 (WIPO Feb. 5, 2001) (finding the domain name confusingly similar "so as to likely confuse Internet users who may believe they are doing business with Complainant or with an entity whose services are endorsed by, sponsored by, or affiliated with Complainant; hence, satisfying the confusing similarity requirement"); see also 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).

Therefore, Policy ¶ 4(a)(i) has been satisfied.

The Panel finds that Respondent is not commonly known by the disputed domain name, nor has Respondent used the domain name in connection with a bona fide offering of goods or services or for 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); see also Broadcom Corp. v Intellifone Corp., FA 96356 (Nat. Arb. Forum Feb. 5, 2001) (finding no rights or legitimate interests because Respondent is not commonly known by the disputed domain name or using the domain name in connection with a legitimate or fair use).

Also, Respondent asserted no rights or legitimate interests in the disputed domain name, which entitles the Panel to conclude Respondent has no such rights or legitimate interests in the domain name at issue. See Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that "Respondents’ failure to respond can be construed as an admission that they have no legitimate interest in the Domain Names"); 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).

Accordingly, Policy ¶ 4(a)(ii) has been satisfied.

The Panel finds that Respondent has passively held the disputed domain name since its registration, which demonstrates 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); see also Alitalia –Linee Aeree Italiane S.p.A v. Colour Digital, D2000-1260 (WIPO Nov. 23, 2000) (finding bad faith where the Respondent made no use of the domain name in question and there are no other indications that the Respondent could have registered and used the domain name in question for any non-infringing purpose).

Moreover, Respondent offered to sell the disputed domain name to Complainant for an amount in excess of out-of-pocket costs. See Educational Testing Service v. TOEFL, D2000-0044 (WIPO Mar. 16, 2000) (finding that a general offer of sale combined with no legitimate use of the domain name constitutes registration and use in bad faith); see also American Anti-Vivisection Soc’y 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").

As a result, Policy ¶ 4(a)(iii) has been satisfied.

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

Therefore, it is Ordered that the domain name, adcbroadband.net, be transferred from Respondent to Complainant.