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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Efficient Networks, Inc. v. Speedstream
Case No. D2000-1136
1. The Parties
Complainant is Efficient Networks, Inc., a Delaware (USA) corporation, 4849 Alpha Road, Dallas, Texas 75244 USA, represented by Anita Nesser, Baker Botts L.L.P., 2001 Ross Avenue, Dallas, Texas 75201 USA (the Complainant).
Respondent is Speadstream, 88 Rogers Road, Suite 22, Carmel, Indiana 46032 USA (the Respondent).
2. The Domain Name and Registrar
The domain name at issue is "speedstream.com". It is referred to as the Domain Name. The registrar is Network Solutions, Inc.
3. Procedural History
The WIPO Arbitration and Mediation Center (the Center) received the Complainant's complaint on August 28, 2000, (electronic version). The Center verified that the complaint satisfies the formal requirement of the Uniform Domain Name Dispute Resolution Policy (the Rules), and the Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the Supplemental Rules). Complainant made the required payment to the Center.
The formal date of the commencement of this administrative proceeding is September 21, 2000.
On September 6, 2000, the Center transmitted via email to Network Solutions, Inc., a request for registrar verification in connection with this case. On September 10, 2000, Network Solutions, Inc. transmitted via email to the Center its Verification Response, confirming that the Respondent is the registrant and that the contact for administrative, billing, and technical matters is "Ecorp.com", Indianapolis, Indiana USA.
Having verified that the complaint satisfied the formal requirements of the Policy and the Rules, the Center transmitted on September 21, 2000, to the Respondent Notification of Complaint and Commencement of the Administrative Proceeding, via post/courier and e-mail. The postal addresses used for Respondent was as follows:
3620 N. Washington Blvd
Indianapolis, IN 46205 (USA)
Two electronic mail communications to Respondent were returned as undeliverable. On October 18, 2000, an attorney representing the Respondent notified the Center by letter, sent by facsimile, of its agreement to transfer the Domain Name to the Complainant. Complainant agreed to suspend this proceeding until November 2, 2000, conditioned upon Respondent's execution of an appropriate transfer agreement. By facsimile letter dated October 31, 2000, the Center notified Respondent of the suspension. By facsimile letter dated November 10, 2000, Respondent's counsel again advised that it would not contest the transfer, but did not execute the agreement to transfer. The Center then advised Respondent, by electronic mail dated November 10, 2000, of its default in failing to file a response.
On November 22, 2000, in view of the Complainant's designation of a single panelist (but without prejudice to any election to be made by the Respondent) the Center invited Mr. Richard G. Lyon to serve as a panelist.
Having received Mr. Lyon's Statement of Acceptance and Declaration of Impartiality and Independence, the Center transmitted to the parties a Notification of Appointment of Administrative Panel and Projected Decision Date was December 10, 2000. The Sole Panelist finds that the Administrative Panel was properly constituted and appointed in accordance with the Rules and Supplemental Rules.
The Administrative Panel shall issue its Decision based on the Complaint, the evidence presented by Complaint, the Policy, the Rules and Supplemental Rules, and the correspondence described above. 1
4. Factual Background
Complainant is a worldwide developer and supplier of high-speed digital subscriber line customer premises equipment for the broadband access market. Complainant's products include a family of products called "SpeedStream." Complainant asserts that it has continuously used the trademark SPEEDSTREAM in United States commerce since October 1997, and has registered the trademark SPEEDSTREAM (word), Reg. No. 2,250, 253, filed May 20, 1997, registered June 1, 1999 for computer hardware, namely, ADSL network interface cards and ADSL modems in International Class 9. (Complaint, 12(I)).
Respondent is in the business of developing linking websites. It has been the subject of other proceedings, involving other domain names, before this tribunal. See Eplan v. Chad Folkening, WIPO Case No. D2000-0806, and cases cited. (October 18 Letter, 2-3).
5. Parties' Contentions and Discussion
Paragraph 15(a) of the Rules instructs the Administrative Panel as to the principles the Administrative Panel is to use in determining the dispute: "A Panel shall 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."
Paragraph 4(a) of the Policy directs that the Complainant must prove each of
(1) that the Domain Name is registered by the Respondent is identical to the trademark in which the Complainant has a right;
(2) that the Respondent has no legitimate interests in respect to the Domain Name; and
(3) that the Domain Name has been registered and used in bad faith.
A Respondent's failure to respond to a complaint does not automatically result in a default judgment for Complainant. Ordinarily the Complainant must still establish the elements described above, and the Panel will make findings in accordance with the evidence and base its decision upon those findings. In this case, however, Respondent has agreed, by written undertaking of its counsel, to the only relief the Panel is empowered to give: a transfer of the Domain Name to Complainant. All that is required to accomplish this is the Panel's decision to that effect. See Rule 3, part c.
In these circumstances the Panel will order that transfer without making any findings. Findings would be of extremely limited use in any subsequent proceeding, even between Complainant and Respondent, and, once the name is transferred, there will be no possibility of Respondent's continuing use of the Domain Name. While the Rules and Supplemental Rules do not expressly authorize a transfer on consent, the Panel presumes that it has such authority 2, to avoid unnecessary proceedings, to avoid the resolution of a moot controversy, and to facilitate settlement following commencement of arbitral proceedings.
For the foregoing reasons, the Administrative Panel orders that the registration of the Domain Name be transferred to the Complainant, on the consent of the parties.
Richard G. Lyon
Dated: December 10, 2000
1. In its November 10, 2000 letter to the Center, Respondent requested that the Panel consider its October 18, 2000 letter.
2. At least one other panel has rendered a comparable decision. See Senco Products, Inc. v. Camp CreekCo., Inc., WIPO Case No. D2000-0590 ("order in the nature of a consent judgment").