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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Ingram Micro Inc. v. RJ, Inc. and Rick Juarez
Case No. D2001-0948
1. The Parties
The Complainant is Ingram Micro Inc., a corporation of the State of Delaware, United States of America, with a principal place of business at 1600 East St. Andrew Place, Post Office Box 25125, Santa Ana, California, United States of America.
Represented by: David A. Segal, Esq., Gibson, Dunn & Crutcher LLP, 4 Park Plaza, Suite 1400, Irvine, California 92606, United States of America.
The Respondent is RJ, Inc. and Rick Juarez, whose addresses is identified as 1133 Waimanu Street, Honolulu, Hawaii 96814, United States of America.
Represented by: Representing itself.
2. The Domain Name and Registrar
The Domain Name in dispute is <ingrammicro.org>.
The Registrar is Register.Com, 575 8th Avenue - 11th Floor, New York, New York 10018, United States of America.
3. Procedural History
The Complaint was received by the WIPO Arbitration and Mediation Center ("the Center") by e-mail on July 23, 2001, and in hard copy on July 25, 2001. The Center has verified that the Complaint satisfies the formal requirements of the 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 Uniform Domain Name Dispute Resolution Policy ("the Supplemental Rules") and that payment was properly made. The Administrative Panel ("the Panel") is satisfied that this is the case.
The Complaint was properly noticed to Respondent according to Paragraph 2(a) of the Rules. Respondent was informed that the last day for filing its Response was August 20, 2001. No Response has been received. The Center issued to the Respondent a Notification of Respondent Default on August 22, 2001, informing Respondent of the consequences of its default.
The Panel has been properly constituted. The undersigned Sole Panelist submitted a Statement of Acceptance and Declaration of Impartiality and Independence. No further submissions were received by the Center or the Panel. Consequently, the date scheduled for the issuance of the Panel’s Decision, pursuant to the request of the Sole Panelist, is October 14, 2001.
4. Factual Background
Complainant Ingram Micro Inc. is a non-exclusive licensee of U.S. Trademark Registration Nos. 1,620,552 and 1,859,001 incorporating the "Ingram Micro" name (the "Marks") owned by Ingram Industries, Inc. ("Ingram Industries"). Complainant and its subsidiaries are also owners or licensees of over twenty (20) international registrations of the "Ingram Micro" marks throughout the world. The license and other agreements between Ingram Industries and Complainant authorize Complainant to pursue this Complaint against Respondent. In addition, Complainant has been the registered owner of the <ingrammicro.com> domain name since June 27, 1996. Complainant has advertised its domain name in its advertisements and brochures since it launched its website at its domain name in the late summer of 1996.
Complainant and its predecessor-in-interest have continuously used the Marks in interstate commerce since January 1991. Complainant uses the Marks in connection with its distributorship services of information technology products which are delivered to resellers in the United States, Europe, Latin America, and the Asia-Pacific region. Complainant has more than 60 distribution centers worldwide and more than 175,000 reseller customers in more than 100 countries. Complainant also obtains products from over 1,700 of the world's leading technology manufacturers. In 2000, Complainant spent in excess of nine (9) million dollars for advertising placements in industry trade publications alone.
Complainant is a large, well-known international business and the world's largest wholesale distributor of technology products and services. Complainant became a publicly held company in November 1996, with global net sales of more than $12 billion, and trades on the New York Stock Exchange. By 1998, Complainant's net sales exceeded $22 billion. In the Computer Reseller News' 1999 Preferred Distributor Study, Complainant was ranked higher in more categories than any other competitor, an honor Complainant had achieved in each of the previous six (6) years. In November 1999, Complainant was ranked the eighth on Inter@ctive Week magazine's Internet 500 based on Internet revenue and named as one of the top 100 companies to excel in the 21st Century by CI0 magazine. In the 2001 listings, Complainant was ranked Number 49 on Fortune magazine's Fortune 500 list and 129th on the Global 500 list.
On or about December 6, 1999, Respondent registered the domain name at issue. No site, other than the Registrar’s default "Coming Soon Web Page", is posted in connection with the domain name.
On or about March 14, 2001, Complainant, through its counsel, attempted to contact Respondent about the dispute of the domain name at issue at the mailing address identified in the registration, but Complainant's letter was returned. Respondent also never responded to the copies of Complainant’s letters sent to Respondent’ s electronic mail address and facsimile number.
5. The Parties’ Contentions
Complainant claims that Respondent’s <ingrammicro.com> domain name is identical or confusingly similar to Complainant’s Marks, and to Complainant's <ingrammicro.com> domain name.
Complainant also claims that Respondent has no right or legitimate interest to the domain name at issue. There is no website posted in connection with the domain name at issue. Respondent, having neither past nor present relationship with Complainant, was at no time licensed to use the Marks or authorized to register any domain name utilizing the Marks.
Complainant further claims that Respondent's registration of the domain name at issue is in bad faith. The non-use of a domain name, under certain circumstances, has been held to evidence bad faith. In addition, Respondent was previously found in violation of the Policy in an administrative proceeding with respect to his <pizzahut.org> domain name, in which Respondent also defaulted.
Complainant requests that the disputed domain name be transferred to Complainant.
The Respondent has submitted no response.
6. Discussion and Findings
Paragraph 4a of the Policy requires that a respondent submit to a mandatory administrative proceeding if a complainant asserts that:
(i) 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
(ii) the respondent has no rights or legitimate interests in respect of the domain name; and
(iii) the domain name has been registered and is being used in bad faith.
In this case, even though Respondent filed no Response and offered no evidence attacking the Complainant’s contentions, the Panel nevertheless reviews the evidence before it to determine whether Complainant has supported each of the above required elements in its contentions within the existing record.
6.1. Identity or Confusing Similarity
In connection with Paragraph 4a(i) of the Policy, the Panel finds that the relevant part of the domain name at issue is identical to Complainant’s Marks. In addition, the domain name itself is confusingly similar to Complainant’s Marks and/or registered <ingrammicro.com> domain name. Accordingly, the first element of Paragraph 4a of the Policy is met.
6.2. Rights or Legitimate Interests
In connection with Paragraph 4a(ii) of the Policy, the Panel finds that Complainant—a licensee under the U.S. trademark registrations for the Marks and an owner of and/or licensee for other international registrations for the Ingram Micro marks—has never authorized Respondent to use the Marks as a trademark or service mark or as the sole content in a domain name. Nor has Respondent ever sought Complainant’s permission to use the Marks or other Ingram Micro marks. Moreover, although Respondent registered the <ingrammicro.org> domain name almost two (2) years ago, Respondent has not used or demonstrated preparation to use the domain name in connection with a bona fide offering of goods or services. Therefore, the Panel finds that Respondent has no rights or legitimate interests with respect to the domain name at issue.
6.3. Bad Faith
The Panel notes that Paragraph 4a(iii) of the Policy will be satisfied only if the complainant proves both that the domain name at issue was registered in bad faith and that it is being using in bad faith. See WIPO Case No. D2000-0003.
In this case, Respondent registered the domain name at issue on or about December 6, 1999. Given Complainant’s trademark registrations, Complainant’s extensive use of the Marks, and Complainant’s wide distribution of its products and services throughout the world, it is not likely that Respondent was unaware of the Marks at the time of the domain name registration. Accordingly, the Panel finds that the domain name has been registered in bad faith.
With respect to the use aspect of Paragraph 4a(iii), the record shows that Respondent has not posted any active website in connection with the domain name at issue. Accordingly, the Panel finds that Respondent’s inaction constitutes a passive holding of the domain name.
It has been well established that Respondent’s passive holding of the domain name amounts to a bad faith use of the domain name in certain circumstances. To determine whether the circumstances in this case lead Respondent’s passive holding to its bad faith use of the domain name, the Panel looks at all circumstances related to Respondent’s behavior. Id.
Similar and in addition to the particular circumstances found in the D2000-0003 Decision, the Panel in this case finds the following circumstances:
(a) Complainant’s Marks have a strong reputation and are widely known, as evidenced by Complainant’s extensive use and promotion of the Marks worldwide;
(b) Complainant has been the registered owner of the <ingrammicro.com> domain name since June 27, 1996, which is before the registration of the domain name at issue;
(c) there is no evidence of any actual or contemplated good faith use by Respondent of the domain name at issue;
(d) Respondent has taken active steps to conceal its true identity, by operating under a name that is not a registered business name,
(e) Respondent failed to keep its registration information current and thus violated the Registrar's policy; and
(f) Respondent was previously found in violation of the Policy in an administrative proceeding with respect to its <pizzahut.org> domain name, in which Respondent also defaulted. See WIPO Case No. D2000-0939.
In light of the above particular circumstances, the Panel concludes that Respondent’s passive holding of the domain name in this case satisfies the requirement of Paragraph 4a(iii) that the domain name "is being used in bad faith" by Respondent.
Finally, Respondent’s failure to present any evidence or to deny Complainant’s allegations allows an inference that the evidence if presented would not have been favorable to Respondent. See WIPO Case No. D2000-0004. Therefore, the Panel finds that Respondent has registered and is using the domain name in bad faith.
Based on the above findings, the Panel concludes that (a) the domain name at issue is either identical or confusingly similar to Complainant’s Marks, (b) Respondent has no rights or legitimate interest in the domain name at issue, and (c) Respondent has registered and is using the domain name in bad faith. Therefore, pursuant to Paragraph 4(i) of the Policy, the Panel orders that the domain name at issue be transferred to Complainant.
Charles E. Miller
Dated: October 10, 2001