DECISION

Aous Uweyda v. Abdallah Sheet

Claim Number:  FA0306000165119

PARTIES

Complainant is Aous Uweyda, Miami, FL (“Complainant”). Respondent is Abdallah Sheet, Miami, FL (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <gousawireless.com>, registered with Tucows, Inc.

PANEL

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.

John J. Upchurch as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on June 20, 2003; the Forum received a hard copy of the Complaint on June 20, 2003.

On June 20, 2003, Tucows, Inc. confirmed by e-mail to the Forum that the domain name <gousawireless.com> is registered with Tucows, Inc. and that Respondent is the current registrant of the name. Tucows, Inc. has verified that Respondent is bound by the Tucows, Inc. 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 June 26, 2003, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of July 16, 2003 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@gousawireless.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 July 23, 2003, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed John J. Upchurch 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.

RELIEF SOUGHT

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

PARTIES' CONTENTIONS

A.  Complainant makes the following assertions:

1. Respondent’s <gousawireless.com> domain name is identical to Complainant’s GO USA WIRELESS mark.

2. Respondent does not have any rights or legitimate interests in the <gousawireless.com> domain name.

3. Respondent registered and used the <gousawireless.com> domain name in bad faith.

B.  Respondent failed to submit a Response in this proceeding.

FINDINGS

Complainant, Aous Uweyda, has been doing business under the GO USA WIRELESS mark for over five years, selling celular products. Besides operating at the <gousawireless.com> domain name for the last two years, Complainant has developed 13 retail locations under the GO USA WIRELESS mark, and currently uses the <gousewireless.net> domain name to conduct its online business.

Respondent, Abdallah Sheet, registered the <gousawireless.com> domain name on April 20, 1999, on behalf of Complainant. Despite Complainant’s request, Respondent registered the disputed domain name in its own name, not the name of Complainant. After Complainant moved its website to a different hosting service, Respondent refused to transfer the administration of the domain name over to Complainant, and instead used the domain name to blackmail Complainant into paying Respondent. Respondent is not currently using the disputed domain name.

DISCUSSION

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 Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules.

Paragraph 4(a) of the Policy requires that 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 Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and

(2) 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.

Identical and/or Confusingly Similar

Complainant has established rights in the GO USA WIRELESS mark through continuous use of the mark in commerce for five years, and its use of the <gousawireless.com> domain name in commerce for two years. See McCarthy on Trademarks and Unfair Competition, § 25:74.2 (4th ed. 2002) (The ICANN dispute resolution policy is “broad in scope” in that “the reference to a trademark or service mark ‘in which the complainant has rights’ means that ownership of a registered mark is not required–unregistered or common law trademark or service mark rights will suffice” to support a domain name Complaint under the Policy).

Respondent’s <gousawireless.com> domain name is identical to Complainant’s GO USA WIRELESS mark. The addition of the top level domain “.com” is irrelevant in determining whether a domain name is identical to a mark in which Complainant has established rights under Policy ¶ 4(a)(i). See Pomellato S.p.A v. Tonetti, D2000-0493 (WIPO July 7, 2000) (finding <pomellato.com> identical to Complainant’s mark because the generic top-level domain (gTLD) “.com” after the name POMELLATO is not relevant); see also Sporty's Farm L.L.C. vs. Sportsman's Market, Inc., [2000] USCA2 33; 202 F.3d 489 (2d Cir. 2000), cert. denied, 530 U.S. 1262 (2000), ("For consumers to buy things or gather information on the Internet, they need an easy way to find particular companies or brand names. The most common method of locating an unknown domain name is simply to type in the company name or logo with the suffix .com").

Accordingly, the Panel finds that the <gousawireless.com> domain name is identical to Complainant’s GO USA WIRELESS mark under Policy ¶ 4(a)(i).

Rights or Legitimate Interests

Respondent is not actively using the <gousawireless.com> domain name, but is instead passively holding onto the domain name registration. This alone, without any evidence that Respondent is making demonstrable preparations to use the domain name, is sufficient grounds to find that Respondent lacks rights or legitimate interests in the domain name. However, under the facts of this dispute, the Panel also considers the Complainant’s uncontested allegation that Respondent hijacked the disputed domain name from Complainant, who had been making a bona fide offering of goods or services until Respondent “pulled the plug” on Complainant’s content. Respondent’s failure to respond to the Complaint, under these circumstances, operates as a tacit admission that it lacks rights or legitimate interests in the disputed domain name. The Panel finds that Complainant’s previous rights vis a vis Respondent in the <gousawireless.com> domain name coupled with Respondent’s failure to utilize the domain name supports the Panel’s conclusion that Respondent does not have rights or legitimate interests in the disputed domain name. See American Anti-Vivisection Soc’y v. “Infa dot Net” Web Serv., FA 95685 (Nat. Arb. Forum Nov. 6, 2000) (finding that Complainant’s prior registration of the same domain name is a factor in considering Respondent’s rights or legitimate interest in the domain name); see also Parfums Christian Dior v. QTR Corp., D2000-0023 (WIPO Mar. 9, 2000) (finding that by not submitting a Response, Respondent has failed to invoke any circumstance which could demonstrate any rights or legitimate interests in the domain name).

Accordingly, the Panel finds that Respondent does not have rights or legitimate interests in the <gousawireless.com> domain name under Policy ¶ 4(a)(ii).

Registration and Use in Bad Faith

Respondent registered and used the <gousawireless.com> domain name in bad faith. In this dispute, Complainant’s uncontested Complaint alleges that Respondent retained possession of the disputed domain name despite Complainant’s rights in the GO USA WIRELESS mark and its commercial website at the <gousawireless.com> domain name. Were Respondent to begin offering goods or services at the disputed domain name, it would run the very serious risk of creating a likelihood of confusion with Complainant’s mark. Thus, the Panel finds that Respondent’s registration of the disputed domain name in its own name, instead of Complainant’s, evidence bad faith registration. Additionally, Respondent’s constructive “hijacking” of the domain name from Complainant operates as bad faith use of the domain name. See Ingram Micro Inc v. Noton Inc., D2001-0124 (WIPO Mar. 6, 2001) (finding bad faith registration and use where Respondent attempted to blackmail the Complainant into buying the disputed domain names); see also Sony Kabushiki Kaisha v. Inja, Kil, D2000-1409 (WIPO Dec. 9, 2000) (finding 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”).

The Panel thus finds that Respondent registered and used the <gousawireless.com> domain name in bad faith, and that Policy ¶ 4(a)(iii) is satisfied.

DECISION

Having established all three elements required under ICANN Policy, the Panel concludes that relief shall be GRANTED.

Accordingly, it is Ordered that the <gousawireless.com> domain name be TRANSFERRED from Respondent to Complainant.

John J. Upchurch, Panelist

Dated:  August 1, 2003

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