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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Mark Jenkins v. DB Enterprise Attn: Dan Black
Case No. D2001-1106
1. The Parties
The Complainant in this proceeding is Mark Jenkins ("Mr. Jenkins") of Orchard Park, New York, USA. The Respondent is DB Enterprise Attn: Dan Black (referred to alternatively herein as "DB Enterprise," "DB Enterprise/Mr. Black" or "Mr. Black") of Nevado, California, USA.
2. The Domain Name and Registrar
The domain name involved in this proceeding is <linkorama.com>. The domain name registrar is Network Solutions, Inc. ("NSI") of Herndon, Virginia, USA.
3. Procedural History
Mr. Jenkins’s Complaint was filed with the World Intellectual Property Organization, Arbitration and Mediation Center (the "Center") by e-mail on September 7, 2001, and in hard copy on September 13, 2001, pursuant to 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 Rules for Uniform Domain Name Dispute Resolution Policy, approved by ICANN on October 24, 1999, (the "Rules") and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the "Supplemental Rules").
On September 17, 2001, the Center notified the registrar, NSI, that Mr. Jenkins had filed his Complaint with the Center, and requested that NSI verify certain details regarding Mr. Jenkins’s Complaint, and the registration and current status of the contested domain name. On September 18, 2001, NSI notified the Center: (i) that NSI received Mr. Jenkins’s Complaint, (ii) that NSI is the Registrar for the contested domain name, (iii) that DB Enterprise is the current listed registrant of the <linkorama.com> domain name registration (with Mr. Black listed as the administrative and billing contact), (iv)of DB Enterprise’s and Mr. Black’s contactdetails, (v) that the Policy applies to the contested domain names through application of NSI’s 5.0 Service Agreement in effect, and (vi) that the domain name registration for the <linkorama.com> domain name is in "on hold" status.
It appears that Mr. Jenkins made proper payment of the administrative fee, but that on September 20 and 25, 2001, the Center notified Mr. Jenkins of his failure to comply with certain formal filing requirements. Mr. Jenkins purported to cure these deficiencies by sending an Amended Complaint to the Center on September 28, 2001. Subsequent to Mr. Jenkins’s attempted curative actions, the Center on October 1, 2001, conducted its formal compliance review and noted that Mr. Jenkins still had not complied with the following formal filing requirements: (1) he did not specify the trademark(s) or service mark(s) on which his Complaint was based, (2) he did not describe the goods or services for which his mark(s) is/are used, and (3) he did not describe, in accordance with the Policy, the grounds on which his Complaint was made.
Nonetheless, on October 1, 2001, the Center began the process to notify DB Enterprise/Mr. Black of the filing of Mr. Jenkins’s Amended Complaint in accordance with the Rules, para. 2(a). DB Enterprise/Mr. Black was given until October 21, 2001, to file a Response. The Center attempted e-mail transmission of its Notice of the filing of Mr. Jenkins’s Complaint and Commencement of this Proceeding at the e-mail addresses listed in the Whois contact details for the contested domain name. The e-mail transmissions were unsuccessful and resulted in the Center’s receipt of a "fatal delivery error" messages.
Also, on October 1, 2001, the Center sent by post and by facsimile the printed version of Mr. Jenkins’s Amended Complaint, with exhibits, and the Notification of Commencement to DB Enterprise/Mr. Black’s mailing address and facsimile telephone number listed in the Whois contact details for the contested domain name. The Panel has not been advised by the Center that the mail package was returned to the Center for insufficient address. (There is a receipt in the case file indicating that the facsimile did go through. Also in the case file is a printed copy of an e-mail message from Mr. Jenkins stating that the package he attempted to send to DB Enterprise/Mr. Black containing the Complaint was returned. Further, an unidentified woman left a telephone message with Mr. Jenkins stating that he and the Center were "harassing her fax machine" with copies of the papers relating to this proceeding. Mr. Jenkins noted his suspicions that the facsimile number listed in the Whois contact details may not belong to DB Enterprise/Mr. Black. However, the mystery does not stop there.
It appears that DB Enterprise/Mr. Black did not timely submit a formal Response to Mr. Jenkins’s Complaint to the Center. For the reasons set forth below, the Panel deems to be in default with respect to this proceeding.
On October 23, 2001, the Center sent by e-mail, courier and by facsimile a Notification of Respondent Default to the e-mail addresses, postal address, and facsimile telephone number listed in the Whois contact details for the contested domain name. There is no delivery receipt in the case file regarding the courier package, but there is a receipt in the case file indicating that the facsimile did go through. There is no indication in the case file that the e-mail transmission was unsuccessful.
On the evening of October 23, 2001, Mr. Black (from a different e-mail address than is listed for him in the Whois contact details for the contested domain name) wrote to the Center’s case manager for this proceeding, asking to speak with her and professing ignorance of this proceeding. Mr. Black sent a further e-mail messageover five hours later, demanding to speak with the Center’s case manager. On October 24, 2001, the Center informed Mr. Black that it was not the Center’s practice to speak with the parties. Mr. Black was sent again all of Mr. Jenkins’s documents filed with the Center.
On the morning of October 25, 2001, Mr. Black sent another e-mail message to the Center, insisting to speak with the case manager on the telephone, stating that it was the first time he was made aware of this proceeding and that he had spoken with an attorney. On the evening of October 25, 2001, Mr. Black sent another e-mail message to the Center, the substance of which is discussed below. Mr. Black did not ask for an extension of time to respond to Mr. Jenkins’s Complaint, and refused to participate in this proceeding.
It appears, then, that Mr. Black was properly notified of this proceeding. Yet, he has chosen not to participate even though his domain name registration agreement with NSI states that application of the Policy is mandatory. For these reasons, the Panel deems to be in default with respect to this proceeding.
In his Complaint, Mr. Jenkins elected to have this proceeding decided by a single member panel. On October 31, 2001, the Center contacted the undersigned to solicit interest in being the sole panelist who would decide this matter. After investigating and clearing potential conflicts of interest, the undersigned notified the Center on November 1, 2001, of the ability and availability to serve as the sole panelist for this matter. Also on November 1, 2001, the undersigned submitted to the Center a Statement of Acceptance and Declaration of Impartiality and Independence. Thus, the administrative panel for this proceeding was properly constituted.
On November 5, 2001, the Center forwarded to the undersigned the case file for this proceeding. Also on November 5, 2001, the Center notified the parties that the undersigned would be the sole Panelist to decide this matter.
4. Factual Background
The entire factual "record" Mr. Jenkins submitted for this proceeding consists of Whois printouts for the domain names <link-o-rama.com> and <linkorama.com>, and the following statement made in Mr. Jenkins’s Amended Complaint:
linkorama.com - Record created on 12-Feb-1998 link-o-rama.com - Record created on 26-Jul-1997 link-o-rama.com is a very popular website (300,000 unique visitors per day accorting [sic] to the SexTracker website counter service (stats can be viewed at: http://ranks.sextracker.com/spn.html?cls=siteranks&cat=Links&pg=0-0.html ) It is my feeling that by using the domain name, the domain name registrant intentionally attempted to attract for financial gain, Internet users to the registrant’s web site or other on-line location, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the registrant’s web site or location or of a product or service on the registrant’s web site or location. Until recently, the domain linkorama.com was redirecting surfers to other adult sites. Accorting to the Network Solutions whois, the domain expired on 12-Feb-2001 but to this date is has not been taken off the not-available list.
5. Parties’ Contentions
Mr. Jenkins asserts that the contested domain name is identical or confusingly similar to a trademark or service mark in which Mr. Jenkins has rights; that DB Enterprise/Mr. Black has no rights or legitimate interests in respect of the domain name; and that the contested domain name was registered and is being used in bad faith.
Although DB Enterprise/Mr. Black did not formally respond to the Complaint, the Panel does have the benefit Mr. Black’s point of view from the following e-mail messagehe sent to the Center:
I have paid for my domain name linkorama.com. I intend to keep it. Network solutions will not release it under any circumstances. I have spoke [sic] to them already and made sure that there [sic] records are updated. I have not nor never will agree to any arbitration or mediation of any kind. I have not received any notice from you [the Center] until three days ago. If anybody wants this domain, they can call me and discuss purchase. Sincerely, Dan Black, Owner of linkorama.com.
6. Discussion and Findings
Transfer of the contested domain name will be ordered if Mr. Jenkins has shown that the following three elements are present:
(i) the contested domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) the domain name registrant has no rights or legitimate interests in respect of the domain name; and
(iii) the contested domain name has been registered and is being used in bad faith.
In an administrative proceeding pursuant to the Policy, Rules and Supplemental Rules, the Complainant must prove that each of these three elements is present.
(Paragraph 4(a) of the Policy)
The following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:
(i) circumstances indicating that the registrant registered or 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 the registrant’s documented out-of-pocket costs directly related to the domain name; or
(ii) the registrant has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that it is shown that the registrant has engaged in a pattern of such conduct; or
(iii) the registrant registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the registrant has intentionally attempted to attract, for commercial gain, Internet users to his web site or other on-line location, by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of the registrant’s web site or location or of a product or service on his web site or location.
(Paragraph 4(b) of the Policy)
On the other hand, any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate the registrant’s rights or legitimate interests to the domain name:
(i) before any notice to the registrant of the dispute, his use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) the registrant (as an individual, business, or other organization) have been commonly known by the domain name, even if the registrant has acquired no trademark or service mark rights; or
(iii) the registrant is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
(Paragraph 4(c) of the Policy)
DB Enterprise/Mr. Black had the opportunity to respond and present evidence that Respondent has rights or legitimate interests in respect of the contested domain name. Respondent chose not to do so. Mr. Jenkins is not entitled to relief simply by reason of the default. However, the Panel can and does draw evidentiary inferences from the failure to respond. See Miles D., Ltd. d/b/a Jazz Alley v. Shosha, Case No. AF-00318 (eResolution, August 29, 2000), citing, Royal Bank of Canada v. D3M Domain Sales, Case No. AF-0147 (eResolution, May 1, 2000).
For example, Paragraph 14 of the Rules provides that:
"(a) In the event that a Party, in the absence of exceptional circumstances, does not comply with any of the time periods established by these Rules or the Panel, the Panel shall proceed to a decision on the Complaint.
(b) If a Party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, these Rules or any request from the Panel, the Panel shall draw such inferences there from as it considers appropriate."
DB Enterprise/Mr. Black has not come forward with evidence or argument in an effort to show that Respondent has any rights or legitimate interests in respect of the contested domain name. (Paragraph 4(c) of the Policy). While this matter was pending, the Panel attempted to locate an active web page or web site under the URL "http://www.linkorama.com". No active web page or site appears under this URL. The Panel, therefore, finds that Respondent does not have any demonstrable rights or legitimate interests in respect of the contested domain name.
The Panel now must decide whether Mr. Jenkins has come forward with sufficient evidence showing that (i) the contested domain name is nearly identical to and/or is confusingly similar to a trademark or service mark in which Mr. Jenkins has rights, and that (ii) the contested domain name has been registered and is being used in bad faith. The Panel finds that neither such circumstances have been shown.
It is the Complainant who has the burden of proving all three elements of paragraph 4(a) of the Policy. Complainant’s failure to prove any one of these three elements is fatal to his claim. See, e.g., Emoney Group, Inc. v. Eom, San Sik, Case No. FA001000096337 (NAF March 26, 2001); J. L. Wilson, Inc. d/b/a Suntan Supply v. Ultraviolet Resources Intl., Case No. FA0105000097148 (NAF June 18, 2001).
While this matter was pending, the Panel visited Mr. Jenkins’s web site under the URL "http://www.link-o-rama.com". The site provides links to various types of pornographic material. A banner appears at the top of the home page of the web site, stating as follows: "GREENGUY LINK O’RAMA: The Official Adult Links Site of the New Millennium!" Lower down on the home page, there are links to "ENTER THE LINK O’RAMA" (offering the Internet viewer free pornographic material) and "ENTER ANNELOVESGREENGUY" (offering the Internet viewer pornographic material for a fee). This does not constitute sufficient evidence that Mr. Jenkins is using <link-o-rama.com> as a trademark or service mark, or that the relevant consuming public recognizes <link-o-rama.com> as such.
Mr. Jenkins’s claim that "link-o-rama.com is a very popular website," citing hundreds of thousands of visitors per day according to the SexTracker web site counter service, does not by itself demonstrate that Mr. Jenkins has trademark or service marks in the domain name. Judy Larson v. Judy Larson Club, Claim No. FA01010000096488 (NAF March 12, 2001) ("without more, the mechanical listing of ‘hits’ from a search engine containing the words … [searched] does not establish trademark rights."). In short, Mr. Jenkins has not shown that the <linkorama.com> domain name is identical or confusingly similar to a trademark or service mark in which he has rights.
From a review of the case file, and upon considering Mr. Jenkins’s arguments, it does not appear that he has provided any evidence of bad faith use and registration recited in Paragraphs 4(b) (ii)-(iv) of the Policy. Mr. Jenkins has not provided any other grounds, not recited in the Policy, for the Panel to find bad faith use and registration of the contested domain name on the part of DB Enterprise/Mr. Black.
The only recited element of bad faith use and registration that conceivably could apply here is Paragraph 4(b)(i) of the Policy. While Mr. Black did request, in his e-mail to the Center, that Mr. Jenkins make him a financial offer to purchase the disputed domain name, the amount of Mr. Jenkins’s demand is not stated. Thus, Mr. Jenkins has not proved that DB Enterprise/Mr. Black demanded payment "in excess of Respondent’s documented out-of-pocket costs directly related to the domain name." More fundamentally, there is no proof that DB Enterprise/Mr. Black registered the domain name in bad faith.
Based upon the foregoing, the Panel finds in favor of Respondent, and denies Complainant’s request for the compulsory transfer of the domain name <linkorama.com>.
Dated: November 27, 2001