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[2003] GENDND 415
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Pierce Country Fire Protection District No. 6 v. MedPharmacy Inc [2003] GENDND 415 (24 April 2003)
CPR Institute for Dispute Resolution
Under the ICANN Uniform Domain Name Dispute
Resolution Policy
366 Madison Avenue • New York, NY 10017-3122
• Tel. (212) 949-6490 • Fax (212) 949-8859 • cprneutrals@cpradr.org • www.cpradr.org
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COMPLAINANT
Pierce Country Fire Protection District No. 6
Aka Central Pierce Fire & Rescue
17520-22nd Ave. E.
Tacoma, WA 98445
Telephone: (253) 589-3226
Fax: (253) 589-3772
E-mail: quinnjoseph@qwest.net
vs.
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File Number:
CPR0309
Date of Commencement: March 18, 2003 Domain Name(s): centralpierce.org
Registrar: eNom Inc.
Arbitrator: avv. Luca Pusateri
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RESPONDENT
MedPharmacy Inc
5400 S. University Dr., Suite 401
Davie, FL 33328
Telephone: (800) 209-1689
Fax: (866) 377-5727
E-mail: unknown
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Before avv. Luca Pusateri, Arbitrator
PROCEDURAL HISTORY
The Complaint was filed with CPR on March 18, 2003 and, after review for administrative compliance,
served on the Respondent on March
18, 2003. The Respondent did not file a Response before April 7, 2003.
I was appointed Arbitrator pursuant to the Uniform Domain
Name Dispute Resolution Policy (“UDRP”) and
Rules promulgated by the Internet Corporation for Domain Names and Numbers (ICANN).
Upon the written
submitted record including the Complaint, I find as follows:
FINDINGS
Respondent’s registered domain name, “centralpierce.org”, was registered with eNom Inc. on January
6, 2003. In registering the name,
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 is identical or confusingly similar
to a trademark or service mark in which complainant has rights; and
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| ii. | Respondent has no rights or legitimate interests in respect of
the domain name; and
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| iii. | Respondent’s domain name has been registered and is being
used in bad faith. |
IDENTITY/CONFUSING SIMILARITY: Complainant alleges that “centarpierce.org” is
identical or confusingly similar to Complainant’s trademark, service mark “Central
Pierce Fire &
Rescue” which applies to a municipal corporation and fire department located in the central portion
of Pierce County,
Washington.
Complainant alleges also that it has adopted the informal name of “Central Pierce Fire & Rescue” on
its correspondence, its checks,
its apparatus and in every way short of a legal name change. All the
above is ongoing since 1990. For three years Complainant has
used the domain name “centralpierce.org”
but later this registration has expired.
Considered the above I find that Complainant service mark is known on the public since long time and
therefore it could be considered
as a service mark for exclusive use of Complainant.
I therefore conclude that the registered domain name is confusingly similar to Complainant’s service mark.
RIGHTS AND LEGITIMATE INTERESTS: Complainant alleges that Respondent has no rights or
legitimate interests with respect to the domain name at issue. In support
for this allegation,
Complainant notes that Respondent’s web site suggests no reason why a domain name of “centralpierce”
would
be a trademark or service mark connected in any way to Medpharmacy Inc, a company that sells
prescription drugs over the Internet.
UDRP Paragraph 4(c) provides that Respondent’s rights or legitimate interests in a domain name may be
demonstrated, without limitation,
by showing that (a) before notice to Respondent of the dispute,
Respondent has used, or 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.
Even if I agree with the Complainat when it says that Respondent does not seem to be connected or known
with the service mark “centralpierce”,
I would like to stress that the name “centralpierce” is a
combination between two generic words and therefore it could be theoretically
used by anyone if
it not collides with rules and laws in protection of the trademark or of the service mark. I also
find that the
Respondent, before notice of the dispute, has used the domain name in connection
with a bona fide offering of goods and services.
Under Paragraph 4(c) of the UDRP this is evidence
of a legitimate interest of the Respondent.
I therefore conclude that Respondent does have rights or legitimate interests with respect to the
domain name at issue.
BAD FAITH: In support of the contention of Respondent’s bad faith registration
and use, Complainant notes only that the Respondent’s agent
has registered the name either to demand
payment from “Central Pierce” to purchase back the domain name, or just because of the
high number
of “hits” received at this web site.
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.
I consider first of all that Complainant and Respondent are not two competitors. I also note that, at
the moment, I do not have
any evidence of the intention by the Respondent to sell, rent or transfer
the domain name to the Complainant for value in excess
of Respondent’s cost. Considered the above I
do not find that Complainant has succeeded in its burden of proofing that the domain
name at stake
has been registered and is being used in bad faith.
I therefore conclude that Respondent did not register and use the domain name in bad faith, as that term
is defined in the ICANN
Policy.
CONCLUSION
In light of my findings above that (a) the registered domain name is confusingly similar to
Complainant’s service mark; (b) Respondent
does have rights or legitimate interests with respect
to the domain name at issue; and (c) Respondent did not register and use the
domain name in bad
faith, as that term is defined in the ICANN Policy, I find in favor of the Respondent.
REMEDY
Complainant’s request to transfer the domain name “centralpierce.org” is hereby DENIED.
Signature of Arbitrator
Date
avv. Luca Pusateri
Venice, April 24, 2003
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