WIPO

 

WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Cellular One Group v. IP Services

Case No. D2000-1035

 

1. The Parties

The Complainant is Cellular One Group, a Delaware partnership, located and doing business at 5001 LBJ Freeway, Suite 700, Dallas, Texas, USA. According to the records of Network Solutions, Inc., the domain name registrar in this case: (1) the Respondent, and the registrant of the domain names, is IP Services, 20862 Redwood Road, Castro Valley, CA 94546; (2) the administrative contact for Respondent is Nael Mohammad, naelmohammad@hotmail.com, phone (650)992-8964 and fax (650)992-8964; (3) the technical contact for Respondent is Internic, internic-free@register.com, phone (212)-627-4988 and fax (212)627-6477; (4) the billing contact for Respondent is Nael Mohammad, naelmohammad@hotmail.com, 40 Poncetta Dr., Apt. 302, Daly City, CA 94015; (5) the NSI records for shopcellularone.com and shopcellone.com were created on March 24, 1999; and (6) the Respondentís domain name servers are (as listed in order) DNS11.REGISTER.COM 209.67.50.233 and DNS12.REGISTER.COM 209.67.50.234.

 

2. The Domain Name(s) and Registrar(s)

The domain names at issue are {shopcellularone.com} and {shopcellone.com} (collectively the "Domain Name"), which Domain Name is registered with Network Solutions, Inc. ("Network Solutions").

 

3. Procedural History

A Complaint was submitted to the World Intellectual Property Organization Arbitration and Mediation Center (the "WIPO Center") on August 14, 2000. An Acknowledgment of Receipt was sent by the WIPO Center to the Complainant, dated August 18, 2000.

On or about August 22, 2000, a Request for Registrar Verification was transmitted to Network Solutions. Network Solutions confirmed by reply e-mail that the Domain Name is registered with Network Solutions and the Respondent was the current registrant. The reply also contained contact information for the Respondent.

The Panel finds that the ICANN Uniform Domain Name Dispute Resolution Policy (the "Policy") is the Policy applicable to this dispute.

A Formal Requirements Compliance Checklist was completed by the assigned WIPO Center Case Administrator on August 21, 2000. The Panel agrees with the assessment of the WIPO Center that the Complaint is in formal compliance with the requirements of the Policy, the Rules for Uniform Domain Name Dispute Resolution Policy, as approved by ICANN on October 24, 1999 (the "Uniform Rules"), and the WIPO Supplemental Rules for Uniform Domain Dispute Resolution Policy, in effect as of December 1, 1999 (the "WIPO Supplemental Rules").

A Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification") was transmitted to the Respondent, setting a deadline of September 12, 2000, by which the Respondent could file a Response to the Complaint. The Commencement Notification was transmitted to the Respondent by e-mail to the e-mail address specified in Network Solutionsí Whois confirmation, as well as by facsimile to the listed fax number and express courier to all available postal addresses. Having reviewed the communications records in the case file, the Panel finds that the WIPO Center has discharged its responsibility under Paragraph 2(a) of the Uniform Rules "to employ reasonably available means calculated to achieve actual notice to Respondent."

On August 19 and 20, 2000, the WIPO Center received communications from Respondent in essence requesting that the Center provide free legal representation for the Respondent. On or about those days the Center advised the Respondent that there was no provision for this in the Rules. On September 21, 2000, having received no further response from the Respondent, the WIPO Center transmitted to the parties a Notification of Respondent Default.

Having received this Panelís Statement of Acceptance and Declaration of Impartiality and Independence, the WIPO Center transmitted to the parties on October 21, 2000, a Notification of Appointment of Administrative Panel. The Projected Decision Date was November 4, 2000. The Sole Panelist finds that the Panel was properly constituted and appointed in accordance with the Uniform Rules and WIPO Supplemental Rules.

 

4. Factual Background

The Panel finds that the following facts appear from the Complaint and documents submitted with the Complaint and have not been disputed by that the Respondent. Complainant owns numerous U.S. and international trademark registrations and applications for the mark CELLULARONE, many of which are well known. The Complainantís trademarks predate any use or registration of the Domain Name, are in full force and effect, and have not been abandoned. Other than to register the Domain Name and offer them for sale, Respondent has made no use of it. The only web sites that exist for the Domain Name are sites whose sole content is an offer of sale of the Domain Name.

 

5. Partiesí Contentions

A. Complainant

Complainant contends that respondent has registered as a domain name a mark which is identical or confusingly similar to the service mark and trademark registered and used by complainant, that the respondent has no rights or legitimate interests in respect to the domain name at issue, and that the respondent has registered and is using the domain name at issue in bad faith.

B. Respondent

Respondent has not contested the allegations of the Complaint.

 

6. Discussion and Findings

Paragraph 15(a) of the Rules instructs the Panel as to the principles the Panel is to use in determining the dispute: "A Panel shall 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." Since both parties are domiciled in the United States, to the extent that it would assist the Panel in determining whether the Complainant has met its burden as established by Paragraph 4(a) of the Policy, the Panel will look to the principles of the law of the United States.

Paragraph 4(a) of the Policy directs that the Complainant must prove each of the following: "(i) 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, (ii) that the respondent has no legitimate interests in respect of the domain name; and, (iii) the domain name has been registered and used in bad faith."

The Panel finds that the Domain Name violates the Policy. The Panel is persuaded by Complainantís contention that the facts of this case are, for all relevant purposes, identical to those in Cellular One Group v. Paul Brien, Case No. D2000-25 (March 10, 2000), decided by this Panel. The discussion and findings set forth in that case are therefore applicable here as well and will be incorporated by reference, and not be repeated, here. Indeed, if anything, this case presents a stronger case for the Complainant. In Cellular One Group v. Paul Brien, there was no evidence of any use by that respondent of the domain name at issue there. Here, there is evidence that Respondent attempted to sell the Domain Names.

 

7. Decision

For all of the foregoing reasons, the Panel decides that the Domain Name registered by Respondent is identical or confusingly similar to the trademark and service marks in which the Complainant has rights, that the Respondent has no rights or legitimate interests in respect of the Domain Name and that the Respondentís Domain Name has been registered and is being used in bad faith. Accordingly, pursuant to Paragraph 4(i) of the Policy, the Panel requires that the registration of the Domain Name {shopcellularone.com} and {shopcellone.com} be transferred to the Complainant.

 


 

Thomas D. Halket
Sole Panelist

Dated: November 6, 2000