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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Media West-BCN, Inc. and Baxter County Newspapers, Inc. d/b/a The Baxter Bulletin v. Thunderbird and Cougar Club of America
Case No. D2000-1112
1. The Parties
1.1 The Complainant is Media West-BCN, Inc. and Baxter County Newspapers, Inc. d/b/a The Baxter Bulletin. Media West-BCN, Inc. is an affiliate of Baxter County Newspapers, Inc. and has offices in Reno, Nevada, USA. The Baxter Bulletin has offices in Mountain Home, Arizona, USA.
1.2 The Respondent is the Thunderbird and Cougar Club of America, with a place of business in Mountain Home, Arizona, USA.
2. The Domain Name and Registrar
2.1 The disputed domain name is "baxterbulletin.com".
2.2 The registrar of the disputed domain name is the Council of Internet Registrars (CORE) with a business address in Geneva, Switzerland.
3. Procedural History
3.1 Complainant initiated the proceeding by filing a complaint, received by the WIPO Arbitration and Mediation Center ("WIPO") on August 23, 2000.
3.2 On August 28, 2000, all formal requirements for the establishment of the complaint were checked by WIPO and found to be in compliance with the ICANN Uniform Domain Name Dispute Resolution Policy (the "Policy"), the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules"), and the WIPO Supplemental Rules for Domain Name Dispute Resolution Policy (the "Supplemental Rules"). The Panel accepts the WIPO checklist as evidence of proper compliance with the Policy, Rules, and Supplemental Rules.
3.3 On September 1, 2000, WIPO transmitted notification of the complaint and commencement of the proceedings to Respondent via e-mail, facsimile, and courier mail.
3.4 On September 28, 2000, WIPO transmitted notification to Respondent of its default in responding to the complaint via e-mail and facsimile.
3.5 On October 3, 2000, WIPO invited the undersigned to serve as panelist in this administrative proceeding, subject to receipt of an executed Statement of Acceptance and Declaration of Impartiality and Independence ("Statement and Declaration"). On October 3, 2000, the undersigned transmitted by facsimile the executed Statement and Declaration to WIPO.
3.6 On October 4, 2000, Complainant and Respondent were notified by WIPO of the appointment of the undersigned sole panelist as the Administrative Panel (the "Panel") in this matter. WIPO notified the Panel that, absent exceptional circumstances it would be required to forward its decision to WIPO by October 18, 2000. On October 4, 2000, the Panel received an electronic file in this matter by e-mail from WIPO. The Panel subsequently received a hard copy of the file by courier mail.
The Panel has not received any further requests from Complainant or Respondent regarding further submissions, waivers or extensions of deadlines, and the Panel has not found it necessary to request any further information from the parties. The proceedings have been conducted in English.
4. Factual Background
4.1 Complainant states that it publishes The Baxter Bulletin, a daily newspaper that has been published since 1901. (Complaint, ¶ 12.)
4.2 Complainant states that its newspaper has a daily circulation of 11,224 in Baxter County, Arkansas, whose population is 36,435 and that it has used the mark BAXTER BULLETIN for almost one hundred years. (Complaint, ¶ 13.)
4.3 Complainant states that Respondent is not a licensee of Complainant nor is it authorized to use Complainant’s BAXTER BULLETIN mark. (Complaint, ¶ 15.)
4.4 Complainant states that the domain name "baxterbulletin.com" does not currently resolve to an active website. (Complaint, ¶ 20.) The Panel has confirmed that this is still the case.
4.5 The Network Solutions' WHOIS database indicates that Respondent registered the domain name "baxterbulletin.com" on March 1, 2000.
5. Parties’ Contentions
"The second level domain name is identical to Complainant’s BAXTER BULLETIN mark."
"On March 30, 2000, counsel for the Complainant sent a letter via Federal Express to Respondent, demanding that Respondent transfer the Domain Name to Complainant."
"After delivery of the letter, counsel for the Complainant contacted Mr. Wheeler by telephone. During the conversation, Mr. Wheeler indicated that he would consider assigning the Domain Name to Complainant. Despite repeated subsequent telephone calls from counsel for the Complainant to Respondent, Respondent has not agreed to transfer the Domain Name to Complainant."
"On or about July 5, 2000, Mr. Bill Wheeler telephoned Ms. Betty Smith, President of The Baxter Bulletin, in order to demand that Complainant pay Respondent $1,000,000 in exchange for the Domain Name. Upon being contacted by counsel for the Complainant regarding Mr. Wheeler’s offer to transfer the Domain Name for $1,000,000, Mr. Wheeler lowered his demand to $1,000. On July 10, 2000, counsel for the Complainant sent Respondent a letter offering to reimburse Respondent for its costs in registering the Domain Name, in the amount of $200. * * * Respondent has not responded to this offer."
Respondent did not file a response to the complaint.
6. Discussion and Findings
6.1 The Uniform Domain Name Dispute Resolution Policy (the "Policy"), adopted by the Internet Corporation for Assigned Names and Numbers (ICANN) on August 26, 1999, (with implementing documents approved on October 24, 1999), is addressed to resolving disputes concerning allegations of abusive domain name registration. The Panel will confine itself to making determinations necessary to resolve this administrative proceeding.
6.2 It is essential to dispute resolution proceedings that fundamental due process requirements be met. Such requirements include that a respondent have notice of proceedings that may substantially affect its rights. The Policy, and the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules"), establish procedures intended to assure that respondents are given adequate notice of proceedings commenced against them, and a reasonable opportunity to respond (see, e.g., paragraph 2(a) of the Rules).
6.3 Based upon air courier receipts and confirmations of e-mails sent to the Respondent, the Panel is satisfied that WIPO took all steps reasonably necessary to notify the Respondent of the filing of the complaint and initiation of these proceedings. The Panel also finds that the failure of the Respondent to furnish a reply is not due to any omission by WIPO.
6.4 Paragraph 4(a) of the Policy sets forth three elements that must be established by a Complainant to merit a finding that a Respondent has engaged in abusive domain name registration, and to obtain relief. These elements are that:
(i) Respondent’s domain name is identical or confusingly similar to a trademark or service mark in which the 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.
In the administrative proceeding, the complainant must prove that each of these three elements are present.
6.5 Complainant asserts that the domain name "baxterbulletin.com" is identical to Complainant's trademark "The Baxter Bulletin." (Complaint, ¶ 16.)
6.6 Complainant also asserts that it has used "The Baxter Bulletin" as the name of its daily newspaper that has been published since 1901. (Complaint, ¶ 12.)
6.7 As the Respondent has failed to submit a response to the complaint, the Panel accepts as true all of the allegations of the complaint. See Talk City, Inc. v. Michael Robertson, D2000-0009, February 29, 2000.
6.8 The Panel finds the "baxterbulletin.com" domain name is identical or confusingly similar to the name "The Baxter Bulletin" and that the Complainant has established it has rights in the name "The Baxter Bulletin," pursuant to paragraph 4(a)(i) of the Policy.
6.9 There is no evidence in the record that would indicate that Respondent has any rights or legitimate interests in respect of the domain name "baxterbulletin.com." Merely registering the domain name is not sufficient to establish rights or legitimate interests for purposes of paragraph 4(a)(ii) of the Policy. See N.C.P. Marketing Group, Inc. v. Entredomains, D2000-0387, July 5, 2000.
6.10 The Panel finds that the Respondent has no rights or legitimate interests in respect of the domain name "baxterbulletin.com," pursuant to paragraph 4(a)(ii) of the Policy.
6.11 Paragraph 4(b) of the Policy lists several factors, without limitation, that if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith. In particular, paragraph 4(b)(i) states:
(i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name.
6.12 In light of (1) the Respondent's original offer to sell the domain name to the Complainant for $1,000,000.00, (2) the Respondent only recently registering the domain name, (3) the Respondent residing less than two miles from Complainant's offices, and (4) that as a result of residing so close to Complainant's offices Respondent must have been aware of the Complainant's daily newspaper published under the name "The Baxter Bulletin," the Panel finds that these circumstances indicate that the Respondent registered the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant for valuable consideration far in excess of the Respondent's documented out-of-pocket costs directly related to the domain name.
6.13 The Panel finds that the Complainant has established that the Respondent registered and used the domain name "baxterbulletin.com" in bad faith.
As the Complainant, Media West-BCN, Inc. and Baxter County Newspapers, Inc. d/b/a The Baxter Bulletin, has established that the Respondent, Thunderbird and Cougar Club of America, has engaged in abusive registration of the domain name "baxterbulletin.com" within the meaning of paragraph 4(a) of the Policy, the Panel orders that the domain name "baxterbulletin.com" be transferred to the Complainant.
R. Eric Gaum
Dated: October 18, 2000