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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
PHE, Inc. v. Bill McCall
Case No. D2003-0516
1. The Parties
The Complainant is PHE, Inc., C/O John L. Myers, Hillsborough, North Carolina, United States of America, represented by Foley Hoag, LLP, United States of America.
The Respondent is Bill McCall, Crofton, Maryland, United States of America.
2. The Domain Name and Registrar
The disputed domain name, <adamevecom.com>, is registered with Go Daddy Software.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on June 28, 2003. On July 2, 2003, the Center transmitted by email to Go Daddy Software a request for registrar verification in connection with the domain name at issue. On July 2, 2003, Go Daddy Software transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. The Center verified that the Complaint satisfied 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").
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on July 8, 2003. In accordance with the Rules, paragraph 5(a), the due date for Response was July 28, 2003. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 31, 2003.
The Center appointed Sandra Franklin as the sole panelist in this matter on August 7, 2003. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
4. Factual Background
Complainant is the owner of numerous registered trademarks for ADAMEVE.COM and ADAM & EVE and variants thereof, as well as numerous related domain names, with first use dating back to 1971. The registrations are in several classes but generally cover the sale of goods of a sexual nature.
5. Parties’ Contentions
Complainant makes the following assertions:
1. Respondent’s <adamevecom.com> domain name is confusingly similar to Complainant’s marks.
2. Respondent does not have any rights or legitimate interests in the <adamevecom.com> domain name.
3. Respondent registered and used the <adamevecom.com> domain name in bad faith.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Paragraph 15(a) of the Rules instructs this Panel to "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."
In view of Respondent’s failure to submit a Response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules.
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
of the top-level
to be identical
Accordingly, the Panel finds that the domain name <adamevecom.com> is confusingly similar to Complainant’s marks and Policy paragraph 4(a)(i) has been satisfied.
B. Rights or Legitimate Interests
to the Panel
in the disputed
as set forth
in the Complaint.
No. FA 118277,
has no rights
to the domain
of the respondent".
The WHOIS contact information does not indicate that Respondent is commonly known by <adamevecom.com>; therefore Policy ¶ 4(c)(ii) does not apply to Respondent.
to a "www.deepthroatsex.com"
use of a
as a result
is not using
with a bona
or for a
on the trade
use of a
in the same
sent a cease
only a "Forbidden"
The Panel finds that Policy ¶ 4(c)(i) and Policy ¶ (4)(c)(iii) do not apply to Respondent, and that Policy ¶ 4(a)(ii) has been satisfied.
C. Registered and Used in Bad Faith
is an indication
of bad faith.
When Complainant sent a cease and desist letter, Respondent replied:
"I will cease and desist from redirecting adamevecom.com to deepthroatsex.com. If you want the domain name compensate me for it or bring it to arbitration."
of bad faith.
AB v. Arild
of the costs
of the domain
to be made".
of the Domain
in the United
AB v. MWD,
in the registration
Accordingly, the Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
For all the foregoing reasons, in accordance with Paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <adamevecom.com> be transferred to the Complainant.
Date: August 14, 2003