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and Mediation Center
ADMINISTRATIVE PANEL DECISION
The Nasdaq Stock Market, Inc. v. Domain Finance Inc.
Case No. D2006-1256
1. The Parties
The Complainant is The Nasdaq Stock Market, Inc., New York, United States of America, represented by Akin, Gump, Strauss, Hauer & Feld, United States of America.
The Respondent is Domain Finance Inc., Sri Damansara, Malaysia.
2. The Domain Name and Registrar
The disputed domain name <nasdaqpost.com> is registered with BulkRegister.com.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 28, 2006. On September 29, 2006, the Center transmitted by email to BulkRegister.com a request for registrar verification in connection with the domain name at issue. On October 2, 2006, BulkRegister.com 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 October 17, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was November 6, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 7, 2006.
The Center appointed Harini Narayanswamy as the sole panelist in this matter on November 17, 2006. 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.
On November 18, 2006, the Respondent sent an email communication to the Registrar stating that the Respondent was not interested in the domain name and requested the Registrar to either delete or transfer the domain name to the Complainant. The email was then forwarded to the Panel in these proceedings.
The Panel provided the parties an option to settle the dispute in the light of the Respondent’s submission. The Panel additionally stipulated that a Settlement Agreement in writing should be submitted within the specified timeline under the Policy, which urges the Panel to render decision by December 1, 2006.
The Parties failed to report a settlement in writing
within the stipulated time. The Panel therefore proceeds to render the decision
in accordance with the Policy, the Rules and based on the materials on record.
4. Factual Background
The Complainant in these Proceedings is Nasdaq Stock Market, a U.S Corporation incorporated in the state of Delaware. It operates its business in the city of New York. The Complainant operates one of the largest electronic screen based securities markets in the world.
The Respondent is Domain Finance Inc of Malaysia.
No details regarding the Respondent’s business has been submitted in these
proceedings. Based on the materials on record it is clear that the disputed
domain name <nasdaqpost.com> was registered on or about July 21, 2002.
5. Parties’ Contentions
The Complainant claims to have used its well known NASDAQ mark continuously from about 1968 in connection with its various financial products and services. It has acquired a distinctive reputation with use dating back to 1968 and as part of its trademark from 1992. The Complainant has several registered trademark rights in the United States and in forty other counties around the world. Some of these distinctive marks have reached an incontestable status in the United States.
The Complainant also owns and uses several domain names which include variations of the NASDAQ mark. These domain names are used by the Complainant in connection with its online and other business. The Complainant states its websites and online presence are very popular with its clients. The Complainant has also actively protected its marks and domain names by filing UDRP cases against cyber squatters.
The disputed domain name <nasdaqpost.com> according to the Complainant resolves to a website that displays the Complainant’s mark. This constitutes unauthorized use of the Complainant’s mark. The Complainant then attempted to contact the Respondent by means of letters and communications dated August 14, 2006 and August 24, 2006. There was no response from the Respondent to these communications. The Complainant then filed the present proceedings against the Respondent.
Relying on several previous UDRP decisions, the Complainant submits that the domain name is confusingly similar to its well known NASDAQ mark as the domain name incorporates the mark in entirety. The Complainant also states that the Respondent has no rights or legitimate interest in the domain name and that the domain name has been registered and used in bad faith. The Complainant accordingly requests for transfer of the domain name.
The Respondent by email dated November 18, 2006, sent
a communication to the Registrar of the domain name copying the Complainant
and the Center, and stating that they have no interest in the domain name and
do not wish to pursue time defending the dispute over the domain name. The Respondent
in the same email communication requested the Registrar to either delete the
domain name or transfer the domain name to the Complainant. Despite multiple
communications between the Complainant, the Center and the Respondent, the Respondent
did not contact the Complainant directly to solve the matter amicably.
6. Discussion and Findings
The Panel finds based on all the material on record that the contentions raised by the Complainant under paragraph 4(a) of the Policy are undisputed. Further the Parties to the dispute are not in disagreement regarding the transfer of the domain name to the Complainant.
Previous cases have held that where a Respondent has consented to transfer
the domain name the requirements under paragraph 4(a) of the Policy are fulfilled.
See Lonely Planet Publication Pty Ltd. v. Hoang Anh Minh and cicvn.com, WIPO
Case No. D2003-0355 and eMusic.com, Inc.v. Mp3DownLoadCity, WIPO
Case No. D2004-0967 and Sanofi-Aventis v. Day Corporation, WIPO
Case No. D2004-1075.
The Panel holds that it is appropriate to transfer the domain name to the Complainant
where the Panel finds based on all the material on record that there are no
issues in dispute regarding the Complainant’s submissions under paragraph
4(a) and the Respondent having expressly consented to the transfer.
The Panel accordingly under paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <nasdaqpost.com> be transferred to the Complainant.
Dated: December 2, 2006