WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
The Southern Company v. Chad Doms a/k/a Chad Folkening
Case No. D2000-0184
Complainant, The Southern Company, on March 17, 2000, submitted a complaint to the WIPO Arbitration and Mediation Center for decision in accordance with the Uniform Policy for Domain Name Dispute Resolution, adopted by the Internet Corporation of Assigned Names and Numbers (ICANN) on August 26, 1999 ("Policy"), the Rules for Uniform Domain Name Dispute Resolution Policy, approved by ICANN on October 24, 1999, and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy.
Respondent, Chad Doms a/k/a Chad Folkening, failed to respond to the complaint and a "Notification of Respondentís Default," dated April 17, 2000, was forwarded by WIPO to Respondent.
Complainant is the largest generator of electricity in the U.S. and one of the largest independent power producers in the world with over $35 billion in assets. In addition to its electric generation, transmission and distribution services, Complainant, through its wholly-owned subsidiaries throughout the world, provides other services ranging from home and business monitoring services, wireless telecommunications services, energy brokerage, business consulting and computer software. Complainant offers these goods and services under the mark SOUTHERN COMPANY. The mark has been used by Complainant on or in connection with the above goods and services since before 1950. Complainant owns a number of U.S. registrations for the SOUTHERN COMPANY mark, including Registration Nos. 2,163,676; 2,176,397; 2,174,593; 2,174,589; 2,174,592; and 2,174,591. Complainant also owns international rights to the SOUTHERN COMPANY mark based on registration of the mark in countries around the world.
Respondent registered the domain name "southerncompany.com" with Network Solutions, Inc. The Web site using this domain name does not appear to be operational (see Exhibit I to complaint). Upon learning of Respondentís domain name registration, Complainant, through its counsel, contacted Respondent via e-mail offering to purchase the domain name at a "reasonable price." Respondent indicated, in its June 14, 1999 e-mail message to Complainantís counsel, that it "would consider a cash offer" and invited Complainant to "submit an opening cash or stock offer." (See Exhibit J) Complainantís counsel, thereafter, offered to purchase the domain name for $4,000, but Respondent did not reply to the offer.
Based upon my review of all the evidence, it is clear that Complainant has proven each of the elements set forth in Paragraph 4(a) of the Policy.
The domain name is legally identical to Complainantís SOUTHERN COMPANY mark. It also does not appear that Respondent has any rights or legitimate interests in respect of the domain name. While Respondentís June 14, 1999, e-mail message makes reference to its "global long-term development and communication plans," there is no evidence in the record to support a determination of Respondentís "use of, or demonstrable preparations to use," the domain name, within the meaning of Paragraph 4 c. (i) of the Policy. Further, there is no evidence that Respondent is commonly known by the domain name or is making a legitimate noncommercial or fair use of the domain name.
There also is abundant evidence that Respondent registered and used the domain name in "bad faith." Such evidence includes Respondentís willingness to sell the domain name to Complainant for an amount in excess of documented out-of-pocket costs. See Robert Ellenbogen v. Mike Pearson, Case No. D2000-0001; Intermatic Inc. v. Toeppen, 947 F. Supp. 1127 (ND Ill. 1996); Panavision International v. Toeppen, 141 F.3d 1316 (9th Cir. 1998).
Evidence of "bad faith" also may be found in the apparent fact that Respondent has engaged in a pattern of conduct in registering domain names in order to prevent the owner of the mark from using the mark as part of its domain name. As Complainantís counsel argues and as the record (see Exhibit L) establishes, Respondent has registered numerous domain names under various pseudonyms.
Finally, I find that, by virtue of the widespread use and reputation of the SOUTHERN COMPANY mark, it is inconceivable that Registrant registered the disputed domain name without knowledge of Complainantís rights in and to the SOUTHERN COMPANY mark. This, too, is evidence of registration and use in "bad faith."
In view of the above, it is ordered that the domain name "southerncompany.com" be transferred from Respondent to Complainant.
Jeffrey M. Samuels
Dated: May 8, 2000