Before Thomas M. Pitegoff, Esq.,
Arbitrator
PROCEDURAL
HISTORY
The Complaint was filed with CPR Institute for Dispute Resolution (CPR) on January
31, 2002. After review for administrative
compliance, CPR transmitted a copy
of the Complaint to Respondent on February 4, 2002. The Respondent did not file
a Response.
On February 28, 2002, CPR appointed me as Arbitrator pursuant to
the Uniform Domain Name Dispute Resolution Policy (UDRP) and
the Rules for UDRP
(the “Rules”) promulgated by the Internet Corporation for Domain Names and Numbers
(ICANN). Out of an abundance
of caution, I did a “whois” search of the disputed
domain name on register.com to see their listed contact person for 3glabs.com.
I found the following information listed as having been updated on February
4, 2002, the same date that CPR had transmitted
a copy of the Complaint to Respondent
at the address noted above: Jim Balman, 2545 Lake Ave., Wilmette, IL 60091,
Phone: 847-256-2384,
Email: jim@balman.com. At my request, the CPR Administrator
transmitted a second copy of the Complaint to Respondent at this address
on
March 4, 2002. Respondent replied by e-mail March 10, 2002, thanking the Administrator
for his attempts to reach him, acknowledging
his receipt of the e-mail and mailed
documents, and stating “I do not plan on responding to this complaint as I find
it without
merit. Thank you.”
Upon the written submitted record including the Complaint and its attachments,
I find as follows:
FINDINGS
Respondent’s registered domain name, 3GLABS.COM, was registered
with Register.com, Inc., on October 14, 1999. In registering
the name with
Register.com, Inc., an ICANN accredited registrar, Respondent agreed to submit
to this forum to resolve any
dispute concerning the domain name, pursuant
to the UDRP.
The UDRP provides, at Paragraph 4(a), that each of three findings must be
made in order for a Complainant to prevail:
               i. Respondent’s domain name must be identical or confusingly
similar to
a trademark or service mark in which complainant has rights; and
               ii. Respondent has no rights or legitimate interests in
respect of the domain
name; and
               iii. Respondent’s domain name has been registered and is
being used in bad
faith.
IDENTITY/CONFUSING
SIMILARITY:Complainant has rights in the mark “3G LAB”, which was registered
to Complainant in England and the European Community on May 2,
2000. (See www.patent.gov.uk.)
Complainant alleges that the domain name 3GLABS.COM is identical to Complainant’s
registered mark. For purposes of determining
identity or confusing similarity,
the .com extension is disregarded, as is the addition of the letter “S” to form
the plural
of the word LAB. Therefore, I conclude that the registered domain
name is identical or confusingly similar to Complainant's protected
mark.
RIGHTS AND LEGITIMATE INTERESTS Complainant alleges that Respondent
has no rights or legitimate interest with respect to the domain name 3GLABS.COM.
In support
of this allegation, Complainant notes that the two nameservers listed
for the 3glabs.com domain do not return an A record for
“www.3glabs.com” or
3glabs.com”, indicating that the domain has no web server; and they do not return
any MX records for “3glabs.com”,
indicating that e-mail is not received at that
domain. Complainant contends that Respondent has not used or made preparations
to use the 3GLABS.COM domain name.
In fact, the domain name 3GLABS.COM does not resolve to an active web site.
UDRP Paragraph 4(c) provides that Respondent’s rights or legitimate interests
in a domain name may be demonstrated, for example,
by any of the following circumstances:
(a) before notice to Respondent of the dispute, Respondent is using or has made
demonstrable
preparations to use, the domain name or a name corresponding to
the domain name in connection with a bona fide offering of goods
or services;
or (b) Respondent has been commonly known by the domain name; or (c) Respondent
is making legitimate noncommercial
or fair use of the domain name, without intent
for commercial gain to misleadingly divert consumers or to tarnish the trademark
or service mark at issue.
Respondent has presented no evidence refuting Complainant’s allegations and
has made no allegation that Respondent is using the
domain name in connection
with any offering of goods or services. Respondent has not demonstrated that
it has been commonly
known by the domain name, nor that Respondent is making
legitimate noncommercial or fair use of the domain name.
I therefore conclude that Respondent does not have any rights or legitimate
interests with respect to the domain name at issue.
BAD FAITH Paragraph 4(b) of the UDRP provides that indications
of bad faith include, without limitation, (a) registration for the purposes
of selling, renting or transferring the domain name to the Complainant for value
in excess of Respondent’s cost; (b) a pattern
of registration in order to prevent
Complainant from reflecting the mark in a corresponding domain name; (c) registration
for
the primary purpose of disrupting the business of a competitor; or (d) an
intentional attempt to attract, for commercial gain,
Internet users to Respondent’s
web site by creating a likelihood of confusion with Complainant’s mark as to
the source, sponsorship,
affiliation or endorsement of Respondent’s web site
or location, or of a product or service on Respondent’s web site or location.
Complainant alleges that the 3GLABS.COM domain name is listed for sale at various
web sites, including www.ctpassport.com and www.afternic.com,
and that the listing
at www.afternic.com requires a minimum bid of $50,000. Complainant alleges that
this is evidence that
the domain name was acquired with the primary aim of selling
it, which constitutes registration in bad faith.
In the absence of any response from Respondent refuting these allegations,
I agree with Complainant. Advertising the domain name
for sale at a minimum
bid of $50,000, an amount far in excess of the direct cost of the domain name
registration, is evidence
that the Respondent has registered the domain name
primarily for the purpose of transferring the registration to the Complainant
or a competitor of the Complainant.
Complainant registered the domain name 3GLAB.COM on October 15, 1999, one day
after Respondent registered the domain name 3GLABS.COM.
Complainant registered
the mark “3G LAB” on May 2, 2000. Because Respondent registered the domain name
before Complainant registered
either the domain name or the trademark, it is
not likely that Respondent intended to transfer the domain name specifically
to Complainant. However, “3G” is a commonly-used term in the telecommunications
business, and it is likely that Respondent intended
to transfer the registration
to any company for whom the term “3G” is important, including Complainant or
a competitor of Complainant.
I conclude that Respondent registered and used the domain name in bad faith,
as that term is defined in the ICANN policy
CONCLUSION
In
light of the findings above that (a) the registered domain name is identical
or confusingly similar to Complainant’s protected
mark; (b) Respondent does
not have rights or legitimate interest with respect to the domain name at issue;
and (c) Respondent
did register and use the domain name in bad faith, as that
term is defined in the ICANN Policy, I find in favor of Complainant.
REMEDY
Complainant’s request to transfer the domain name 3GLABS.COM to
Complainant is GRANTED. The domain name shall be transferred to
Complainant,
3G LAB Ltd.
    Thomas
M. Pitegoff, Esq.  
    March
11, 2002      
  Signature
of Arbitrator
             
  Date
WorldLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.worldlii.org/int/other/GENDND/2002/367.html
