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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Charles Beseler Company v. Kim Nguyen
Case No. D2001-0191
1. The Parties
The Complainant in this administrative proceeding is Charles Beseler Company, 2600 Lower Road, Linden, NJ 07036, United States of America. The Complainant is represented by: Michaelson & Wallace, Peter L. Michaelson , Arthur L. Lieberman, Of Counsel, P.O. Box 8489, Parkway 109 Office Center, 328 Newman Springs Road, Red Bank, NJ 07701-8489, United States of America.
The Respondent is Kim Nguyen, 3707 West Spring Vista Dr., West Valley, UT 84120, United States of America.
2. The Domain Name and Registrar
The domain name in dispute is <beseler.com>. The registrar for the disputed domain name is Network Solutions, Inc. (NSI), 505 Huntmar Park Drive, Herndon, VA 20170-5139, United States of America.
3. Procedural History
This dispute is to be resolved in accordance with the Uniform Domain Name Dispute Resolution Policy (the "Policy") and Rules (the "Rules") approved by the Internet Corporation for Assigned Names and Numbers (ICANN) on October 24, 1999, and the World Intellectual Property Organization Arbitration and Mediation Center’s Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the "Center"; the "Supplemental Rules").
The Complaint was filed on February 5, 2001. On February 12, 2001, NSI confirmed that the registrant of the disputed domain name was the Respondent and that Network Solutions’ 5.0 Service Agreement is in effect.
On February 13, 2001, the Center commenced the administrative proceeding and forwarded a copy of the Complaint to Respondent by Federal Express, e-mail and facsimile. Respondent did not file a response by March 4, 2001 and a Notification of Default was issued on March 6, 2001.
The Administrative Panel submitted a Declaration of Impartiality and Independence on March 15, 2001, and the Center proceeded to appoint the Panel on March 19, 2001. This Panel finds the Center has adhered to the Policy and Rules in administering this case.
The decision was originally due by April 1, 2001 and thereafter extended to April 20, 2001.
4. Factual Background
Complainant, Charles Beseler Company, is a Delaware corporation with a principal place of business in Linden, New Jersey, USA. Complainant owns two U.S. trademark registrations and one Canadian trademark registration for the mark "BESELER."
Respondent, Kim Nguyen, registered the domain name <beseler.com> on January 6, 1998. The record expired on January 7, 2001; however, the domain name remains "active" according to NSI.
5. Parties’ Contentions
Charles Beseler Company owns two U.S. trademark registrations covering the BESELER mark for optical projectors, cameras and related equipment, as well as shrink film packaging machines. Complainant also owns a Canadian trademark registration for the same mark for similar goods.
Complainant contends that it holds extensive common law rights in the United States for the BESELER mark by virtue of long and continuous use of the mark and has expended approximately $1,260,000 annually in marketing and promoting its product under the BESELER trademark for the period 1995 to 2000 and approximately $1,349,000 annually for the period 1990 to 1995.
Complainant further contends that Respondent registered the domain name <beseler.com> in bad faith with no right or interest in the domain name and with the intent to sell the name to Complainant.
Respondent has not filed a response to the Complaint and is in default. By failing to file a response, Respondent has not denied Complainant’s contentions.
6. Discussion and Findings
In order for Complainant to prevail and have the disputed domain name <beseler.com> transferred to itself, Complainant must prove the following (Policy ¶ 4(a)(i-iii)):
(i) the domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the domain name; and
(iii) the domain name was registered and is being used in bad faith.
The Complainant owns two United States Trademark Registrations for the BESELER mark, namely, U.S. Trademark Registration No. 659,785 issued March 25, 1958 and Registration No. 1,171,972 issued October 6, 1981, both claiming use of the mark in the United States since 1950.
This Panel finds Respondent’s second level domain name <beseler.com> is identical to Complainant’s registered trademark.
This Panel further finds Respondent has no legitimate interest in the domain name since there is no evidence showing Respondent was using the domain name for any type of activity.
Finally, this Panel finds Respondent registered the domain name in bad faith because he had actual or constructive notice of Complainant’s registered trademark, and was using the disputed domain name in bad faith based on Complainant’s credible evidence that Respondent is or was holding the domain name passively with an intent to sell.
The Panel concludes that the domain name <beseler.com> is identical or confusingly similar to Complainant’s trademark, that the Respondent lacks any right or legitimate interests in the domain name and that the domain name was registered and used in bad faith. Therefore, this Panel orders that the disputed domain name <beseler.com> be transferred to Complainant, Charles Beseler Company.
Nels T. Lippert
Dated: April 23, 2001