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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Creative NetVentures, Inc. v. Webheads

Case No. D2000-1655

 

1. The Parties

1.1 The Complainant is Creative NetVentures, Inc., a corporation organized and existing under the laws of the State of Georgia, United States of America, having its principal place of business at 270 Westbury Lane, Atlanta, Georgia, United States of America.

1.2 The Respondent is Webheads, an entity, having an address at 10956 Weyburn Ave. # 202, Los Angeles, California, United States of America.

 

2. The Domain Name(s) and Registrar(s)

The domain name at issue is <anteup.com>, which domain name is registered with Bulkregister.com, Inc. ("Bulkregister"), based in Baltimore, Maryland, United States of America.

 

3. Procedural History

3.1 A Complaint was submitted electronically to the World Intellectual Property Organization Arbitration and Mediation Center (the "WIPO Center") and the signed original together with four copies was received on November 29, 2000.

3.2 On December 5, 2000, Bulkregister confirmed that it had received a copy of the Complaint, that the domain name at issue is registered with Bulkregister, that it is currently in Registrar LOCK status, and that the Respondent is the current registrant of the name. The registrar also forwarded the requested Whois details, and confirmed that the Policy is in effect.

3.3 The WIPO Center determined that the Complaint satisfies the formal requirements of the Policy, the Rules for Uniform Domain Name Dispute Resolution Policy (the "Uniform Rules") and the Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the "Supplemental Rules"). The Panel has independently determined and agrees with the assessment of the WIPO Center that the Complaint is in formal compliance with the requirements of the Uniform Domain Name Dispute Resolution Policy, adopted by the Internet Corporation for Assigned Names and Numbers ("ICANN") on August 26, 1999 (the "Policy"), the Uniform Rules, and the Supplemental Rules. The required fees for a one-person Panel were paid on time and in the required amount by the Complainant.

3.4 No formal deficiencies having been recorded, on December 12, 2000, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification") was transmitted to the Respondent (with copies to the Complainant, NSI and ICANN), setting a deadline of December 31, 2000, by which the Respondent could file a Response to the Complaint. The Commencement Notification was transmitted to the Respondent by e-mail to the e-mail addresses indicated in the Complaint and specified in Bulkregister's confirmation. In addition, the complaint was sent by express courier to the postal address given. Having reviewed the communications records in the case file, the Administrative Panel finds that the WIPO Center has discharged its responsibility under Paragraph 2(a) of the Uniform Rules "to employ reasonably available means calculated to achieve actual notice to Respondent. In any event, Respondent's participation in these proceedings is proof that notice was received."

3.5 On December 27, 2000, the WIPO Center received in electronic format and in hard copy a Response. The Respondent requested a three-member Panel and nominated three candidates for appointment as one member of the Panel. Payment in the requisite amount was made.

3.6 On December 29, 2000, the WIPO Center transmitted to the parties an acknowledgement of Receipt (Response).

3.7 On February 14, 2001, in view of the Respondent's designation of a three person Panel, the WIPO Center appointed James Wilson Dabney, Jeffrey M. Samuels, and M. Scott Donahey to serve as Panelists, with M. Scott Donahey to act as Presiding Panelist. The WIPO Center set February 28, 2001, as the deadline for a decision, which was later extended to March 9, 2001.

 

4. Factual Background

4.1 Complainant filed for registration of the trademark ANTEUP in connection with providing a web site containing information and electronic links to the sites of others in the fields of gambling and gaming with the United States Patent Office ("USPTO") on August 6, 1999, and the registration issued on September 12, 2000. Annex 3 attached to the Complaint shows date of first use of the mark as October 31, 1997.

4.2 Complainant also maintains a web site at www.anteup.net. The domain name <anteup.net> was first registered on August 17, 1998. (Footnote 1) Complainant also is the registrant of the domain names <anteup.org> and <anteup.tv>.

4.3 Respondent registered the domain name at issue on July 10, 1996.

4.4 At the time of the filing of the Complaint, the domain name at issue resolved to a web site which indicated "coming soon!" This web site was unchanged for at least one and one-half years prior to the filing of the Complaint.

4.5 In the Response, Respondent indicated that he had plans to launch a web site to publish information concerning the amount of money raised by various companies from venture capitalists, angels, and other investors. Respondent indicated that it had plans to launch the site in the first quarter of 2001. Currently, the domain name at issue resolves to a web site much as that described in the Response. (Footnote 2)

4.6 Respondent contends that "ante up" is a common American idiom meaning "to produce the required amount of money in order to close a transaction; to pay what one owes; or to contribute money one is responsible for or is expected to give." Annexes 2 and 3 to the Response.

4.7 In 1996 through the present, Respondent has registered several other domain names using descriptive terms in the Second Level Domain (SLD), such as <justflowers.com>, <flowerfields.com>, <virtualbouquet.com>, <justmusic.com>,<floristsearch.com>, <justgiftbaskets.com>, <ishop.com>, <drinkup.com>, <keepinmind.com>, and <redlightgreenlight.com> among others.

4.8 Complainant has attempted to contact Respondent's President, but Respondent's President has refused to take the calls.

 

5. Parties’ Contentions

5.1 Complainant contends that Respondent has registered as a domain name a mark which is identical or confusingly similar to the trademark registered and used by Complainant, that Respondent has no rights or legitimate interests in respect to the domain name at issue, and that Respondent has registered and is using the domain name at issue in bad faith.

5.2 Respondent contends that it has rights and legitimate interests in using a common descriptive term to resolve to a web site and that the domain name at issue was neither registered nor is it being used in bad faith.

 

6. Discussion and Findings

Paragraph 15(a) of the Rules instructs the Panel as to the principles the 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."

Since both the Complainant and Respondent are domiciled in the United States, and since United States’ courts have recent experience with similar disputes, to the extent that it would assist the Panel in determining whether the Complainant has met its burden as established by Paragraph 4(a) of the Policy, the Panel shall look to rules and principles of law set out in decisions of the courts of the United States.

Paragraph 4(a) of the Policy directs that the Complainant must prove each of the following:

(1) that the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and,

(2) that the Respondent has no legitimate interests in respect of the domain name; and,

(3) that the domain name has been registered and is being used in bad faith.

It is not disputed that the domain name at issue, <anteup.com>, is confusingly similar or identical to the trademark in which the Complainant has rights.

Respondent registered the domain name at issue on July 10, 1996. This is more than three years before Complainant filed for registration of the trademark, more than four years prior to the issuance of registration, and more than fifteen months before Complainant claims to have first used the mark in commerce. Prior panel decisions have found that this fact of prior registration in and of itself gives Respondent rights and legitimate interests in respect of the domain name. See, e.g., Mpower Communications Corp. v. Park Lodge Hotel, ICANN Case No. D2000-0078. The fact that Complainant's mark is a common descriptive term which has been in use by Complainant for only a short period indicates that the mark is a weak one. In such cases, it has been held that this would not defeat the rights or legitimate interests of a Respondent in respect of a domain name incorporating such mark where such adoption was not intended to cause confusion or diversion of business. EAuto, L.L.C. v. EAuto Parts, ICANN Case No. D2000-0096. Accordingly, the panel finds that Respondent has established that it has rights and legitimate interests in respect of the domain name at issue.

Because the Panel finds that Complainant has failed to establish the second of the three elements on which the Complainant has the burden, the Panel does not need to reach the question of whether the domain name was registered and is being used in bad faith.

 

7. Decision

For all of the foregoing reasons, the Panel decides that the domain name registered by Respondent is identical or confusingly similar to the trademark in which the

Complainant has rights, but that the Respondent has rights or legitimate interests in respect of the domain name at issue. Accordingly, the Panel denies the relief requested.

 

 

M. Scott Donahey
Presiding Panelist

James Wilson Dabney

Jeffrey M. Samuels

Dated: March 9, 2000

 

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Footnotes:

1. It is well accepted that the Panel is entitled to consider publicly available facts, such as those revealed in a visit to Respondent's Web site. Draw-Tite, Inc. v. Pittsburgh Spring Inc., ICANN Case No. D2000-0017; High-Class Distributions S.r.l. v. Online Entertainment Services, ICANN Case No. D2000-0100. Such an action is tantamount to the taking of judicial notice under the United States Federal Rules of Evidence, Rule 201. Chernow Communications, Inc. v. Jonathan D. Kimball, ICANN Case No. D2000-0119.

2. Id.