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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

GMI Sound Corporation v. Fitzpatrick Brothers Studios

Case No. D2005-0204

1. The Parties

The Complainant is GMI Sound Corporation, Brooklyn, New York, United States of America, represented by Coleman Law Firm, P.C., New York, New York, United States of America.

The Respondent is Fitzpatrick Brothers Studios, New York, New York, United States of America.

2. The Domain Name and Registrar

The disputed domain name <audiodynamics2003.com> is registered with Go Daddy Software.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 22, 2005. On February 22, 2005, the Center transmitted by email to Go Daddy Software a request for registrar verification in connection with the domain name at issue. On February 22, 2005, 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. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed the amendments (1) and (2) to the Complaint on February 28, 2005 and March 1, 2005 respectively. The Center verified that the Complaint together with the amendment to 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 March 1, 2005. In accordance with the Rules, paragraph 5(a), the due date for Response was March 21, 2005. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 22, 2005.

The Center appointed the undersigned Nicolas Ulmer as the sole panelist in this matter on April 1, 2005. The Panel finds that it was properly constituted. The panelist 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 a Company with its principal place of business in New York, which manufactures and markets audio speakers.

Complainant has a registered U.S. Trademark as follows:

Registrant: GMI Sound Corporation

Trademark: AUDIO DYNAMICS 2003

U.S. Registration No.: 2677581

Date of U.S. Registration: January 21, 2003

Type of Goods/Services: Audio Speakers

According to Complainant’s sworn Complaint the Complainant hired Respondent to register the disputed domain name on behalf of Complainant. The disputed domain name was registered on or about October 8, 2003, but remains registered in the name of Respondent.

On December 7, 2004, the Complainant’s lawyers sent a letter to Respondent demanding that the disputed domain name be transferred to Complainant, but apparently received no reply. According to the Complaint Respondent also failed to return phone calls from Complainant or its lawyers seeking to resolve the ownership of the disputed domain name.

5. Parties’ Contentions

A. Complainant

Complainant maintains that the three elements of Paragraph 4(a) of the Policy are satisfied by the above facts. In particular Complainant asserts that Respondent’s passive control of the disputed domain name for more than a year and three months constitutes sufficient bad faith “use” of the same within the meaning of the Policy and the Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003 case and precedent.

B. Respondent

The Respondent did not reply to the Complainant’s contentions, and is in default.

6. Discussion and Findings

To obtain relief, Paragraph 4(a) of the Policy requires the Complainant to 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 rights or legitimate interest in the domain name, and

3. the domain name has been registered and used in bad faith.

A. Identical or Confusingly Similar

Complainant’s registered trademark and the disputed domain name are virtually identical. Complainant has satisfied the first element of the Policy.

B. Rights or Legitimate Interests

There is no showing or inference in the file that Respondent has any legitimate interest in the disputed domain name or has made any legitimate commercial or non-commercial use of the same. There is evidence allegations, and substantial inference, in the file to the contrary. Based on the case file, the Panel concludes that Complainant has met its burden of proof on the second element of the Policy.

C. Registered and Used in Bad Faith

The disputed domain name was issued to Respondent significantly after Complainant had registered its mark. Moreover, Complainant asserts without contradiction that Respondent was hired to register the disputed domain name on Complainant’s behalf, but kept the registration for itself. Thus bad faith registration is established. The improper holding of a domain name one was hired by another to register would also be sufficient to establish bad faith use.

Apart and in addition from this specific factual assertion Complainant maintains that Respondent’s evident passive holding of the disputed domain name is here sufficient bad faith “use” within the meaning of the Policy. Pursuant to the Telstra precedent and its progeny the lack of active use does not preclude a finding of bad faith “use” under Paragraph (4) of the Policy, such a finding depends on the overall circumstances and the evidence and inferences that can be drawn from them. See Labroke Groupe Plc v. Sonoma International LDC, WIPO Case No. D2002-0131. The full circumstances adumbrated here; including a prior mark registration and a failure to answer a clear demand letter, constitute sufficient evidence and inference of bad faith use, and are inconsistent with any good faith explanation for Respondent’s passive holding of the disputed domain name. Respondent’s default in this proceeding, while not in and of itself evidence of bad faith, entitles the Panel to rely on inferences and justified factual assertions on the Complaint. See generally Berlitz Investment Corp. v. Stefan Tinculescu, WIPO Case No. D2003-0465.

The Panel therefore finds that Complainant has met its burden of proof on all requisite elements of Paragraph 4(a) of the Policy.

7. Decision

For all the foregoing reasons, in accordance with Paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name, <audiodynamics2003.com>, be transferred to the Complainant.

Nicolas Ulmer
Sole Panelist

Dated: April 15, 2005