DECISION

VoterVoice, LLC v. Voter's Voice

Claim Number:  FA0410000338377

PARTIES

Complainant is VoterVoice, LLC (“Complainant”), represented by R. Andrew Patty of Sieberth & Patty, LLC, 2924 Brakley Drive, Suite A-1, Baton Rouge, LA, 70816.  Respondent is Voter's Voice (“Respondent”), c/o PageUp Communications, 611 Broadway, NewYork, NY, 10012.

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <votervoice.com>, registered with Bulkregister, LLC.

PANEL

The undersigned certifies that she has acted independently and impartially and that to the best of her knowledge she has no known conflict in serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically October 1, 2004; the Forum received a hard copy of the Complaint October 4, 2004.

On October 1, 2004, Bulkregister, LLC., confirmed by e-mail to the Forum that the domain name <votervoice.com> is registered with Bulkregister, LLC. and that Respondent is the current registrant of the name. Bulkregister, LLC. verified that Respondent is bound by the Bulkregister, LLC. 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 October 7, 2004, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of October 27, 2004, 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@votervoice.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 November 2, 2004, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Carolyn Marks Johnson as Panelist.

Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum 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. The domain name Respondent registered, <votervoice.com>, is identical to Complainant’s VOTERVOICE mark.

2. Respondent has no rights or legitimate interests in the <votervoice.com> domain name.

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

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

FINDINGS

Complainant, VoterVoice, LLC, established with extrinsic proof in this proceeding that it holds a registration for the VoterVoice mark.  Complainant provides the service of leasing an interactive computer database service for political lobbying and legislative education.  Complainant registered the VOTERVOICE mark June 18, 2002, with the U.S. Patent and Trademark Office (reg. no. 2,583,156).  Complainant also holds the registration to the <votervoice.net> domain name. 

On September 6, 2003 Complainant sent a letter to Respondent offering to purchase the <votervoice.com> domain name registration for $1000.  In this letter, included in Complaint at Annex 2, Complainant states, “I have tried to contact you . . . about a domain name that you registered back in 1996, votervoice.com.  In 1999, I started a company to enable citizens to more easily become involved in the legislative process.  The company is called VOTERVOICE LLC.”

Respondent registered the <votervoice.com> November 25, 1996.  Respondent is not currently using the domain name.  Respondent has used the domain name in the past as a comment submission form.

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 to and/or Confusingly Similar

Complainant registered the VOTERVOICE mark with the USPTO June 18, 2002.  Respondent registered the <votervoice.com> domain name November 25, 1996.  The Panel finds that Complainant has not shown sufficient rights to bring a claim under the Policy because Complainant’s registration of its mark does not predate Respondent’s registration of its domain name.  See Phoenix Mortgage Corp. v. Toggas, D2001-0101 (WIPO Mar. 30, 2001) (finding that Policy ¶ 4(a)(i) “necessarily implies that Complainant’s rights predate Respondent’s registration . . . of the domain name”); see also Ezcommerce Global Solutions, Inc. v. Alphabase Interactive, D2002-0943 (WIPO Nov. 21, 2002) (allowing a junior trademark user to challenge a domain name registration, which predates Complainant’s trademark rights, is “obviously contrary to the intent of the Policy and to trademark law generally”).

The Panel need not consider issues of similarity because Complainant has failed to establish the first element of Policy ¶ 4(a)(i).

Rights to or Legitimate Interests

Respondent has not filed a Response in this matter; therefore the Panel may accept all reasonable allegations by Complainant as true.  See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that Complainant’s allegations are true unless clearly contradicted by the evidence); see also Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that Respondent’s failure to respond allows all reasonable inferences of fact in the allegations of Complainant to be deemed true).

Complainant alleges that Respondent does not have a legitimate interest in the <votervoice.com> domain name because Respondent is not using the domain name.  The Panel accepts Complainant’s assertion that Respondent has used the disputed domain name in the past as a comment submission form.  Nevertheless, because Respondent’s domain name registration predates Complainant’s trademark registration, Respondent’s interest in the domain name is legitimate.  See Latent Tech. Group, Inc. v. Fritchie, FA 95285 (Nat. Arb. Forum Sept. 1, 2000) (finding that Respondent does have a legitimate interest in the domain name where Complainant applied for registration of the mark after Respondent registered the domain name and Complainant has not proven any earlier use of the mark); see also Warm Things, Inc., Inc. v. Weiss, D2002-0085 (WIPO Apr. 18, 2002) (finding that Respondent had rights or legitimate interests in a domain name when its registration of that domain name occurred before Complainant had established rights in its alleged mark).

The Panel finds that Complainant has failed to establish Policy ¶ 4(a)(ii).

Registration and Use in Bad Faith

The Panel holds that bad faith registration and use is not possible when the domain name registration predates Complainant’s trademark registration and use.  Complainant avers to this essential fact: “I have tried to contact you . . . about a domain name that you registered back in 1996, votervoice.com.  In 1999, I started a company to enable citizens to more easily become involved in the legislative process.  The company is called VOTERVOICE LLC.”  Simply restated, Respondent could not have registered the disputed domain name in bad faith if, at the time of registration, Complainant’s company did not exist.  See Aspen Grove, Inc. v. Aspen Grove, D2001-0798 (WIPO October 5, 2001) (finding that it is impossible for Respondent to register disputed domain name in bad faith if Complainant's company did not exist at the time of registration); see also Open Sys. Computing AS v. degli Alessandri, D2000-1393 (WIPO Dec. 11, 2000) (finding no bad faith where Respondent registered the domain name in question before application and commencement of use of the trademark by Complainant).

            The Panel finds that Complainant has failed to establish Policy ¶ 4(a)(iii).

DECISION

Having failed to establish all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.

Hon. Carolyn Marks Johnson, Panelist

Dated: November 16, 2004

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