WIPO

 

WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Lincoln Property Company v. LPC

Case No. D2001-0238

 

1. The Parties

Complainant is Lincoln Property Company, a Texas Corporation.

Respondent is LPC, an unknown entity providing a mailing address in Dallas, Texas.

 

2. The Domain Name and Registrar

The domain name at issue is lpc.com ("Domain Name"):

The registrar is Tucows, Inc. Toronto, Ontario, Canada.

 

3. Procedural History

This action is subject to the ICANN Uniform Domain Name Dispute Resolution Policy, dated October 24, 1999 ("the Policy") and the ICANN Rules for Uniform Domain Name Dispute Resolution Policy, dated October 24, 1999 ("the Rules").

The complaint was submitted on February 14, 2001. After proper notice, the Respondent has failed to answer and is in default.

On April 4, 2001, the WIPO Arbitration and Mediation Center appointed Mark V.B. Partridge as Panelist.

 

4. Factual Background

Complainant has used the mark LPC for over 30 years in connection with a nation-wide real estate services business and is the owner of U.S. trademark registration, Reg. No. 1,192,301, dated March 16, 1982, for LPC in connection with "planning and development of residential apartment communities, country clubs, and industrial and commercial building complexes."

The Domain Name was registered on March 9, 2000, and leads to a web site that states:

"lpc.com will be online soon.

In the meantime, feel free to contact us for more information.

Welcome to lpc.com.

(If you expected something else, it might help to try a similar, but different, domain name.)

Please note: we receive many requests each day. Please make sure your request gets noticed: be a specific as possible. Thank you."

The registration record for the domain name states that the telephone and fax numbers of Respondent are "unknown." The only address given is a post office box. Complainant has employed private investigators who have gone to great lengths to locate Respondent without success. Respondent has investigated every possible lead arising from the registration record or from the web site. As a result of those impressively thorough investigations, it appears that Respondent has deliberately sought to hide its true location and identity.

 

5. Partiesí Contentions

Complainant contends that the Domain Names are confusingly similar to its mark, that Respondent has no rights or legitimate interests in the Domain Names, and that Respondent has registered and used the Domain Names in bad faith.

Respondent has not responded to those contentions.

 

6. Discussion

To obtain relief under the ICANN Uniform Domain Name Dispute Resolution Policy, 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) that the domain name has been registered and used in bad faith.

A. Confusing Similarity

Complainant's registration proves ownership of prior rights in the mark LPC which is identical to the Domain Name. Therefore, I find that Complainant has met the requirements of Paragraph 4(a)(i) of the Policy.

B. Legitimate Interests

Under the Policy, legitimate interests in a domain name may be demonstrated by showing that: (i) before any notice of this dispute, respondent used, or demonstrably prepared to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; (ii) respondent has been commonly known by the domain name, even if no trademark or service mark rights have been acquired; or (iii) respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark at issue. Policy 4(c).

Here, Respondent has not yet used the Domain Name for any bona fide offering of goods or services and there is no evidence of any demonstrable plan to do so. Based on Complainant's investigative report, there is no evidence that Respondent is known by the name LPC. Accordingly, I find that Respondent lacks any right or legitimate interest in the Domain Name.

C. Bad Faith Registration and Use

Paragraph 4(b) of the Policy states:

"For the purposes of Paragraph 4(a)(iii), the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:

(i) circumstances indicating that [Respondents] have registered or [Respondents] have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the Complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of [Respondentsí] documented out-of-pocket costs directly related to the domain name; or

(ii) [Respondents] have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that [Respondents] have engaged in a pattern of such conduct; or

(iii) [Respondents] have registered the domain name primarily for the purpose of disrupting the business of a competitor; or

(iv) by using the domain name, [Respondents] have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on [Respondentsí] web site or location."

As specifically noted in the Policy, the circumstances of bad faith are not limited to the above. See, e.g., Telstra Corporation v. Nuclear Marshmallows, D2000-0003 (WIPO, February 18, 2000); 3636257 Canada v. eResolution.com, D2000-0110 (WIPO, April 10, 2000).

Here, although there has been no active use of the Domain Name, other than the inactive web site, prior Panel decisions show that the circumstances present here are sufficient to establish bad faith registration and use. Those circumstances include:

1. Failure to provide a voice or fax phone number of the administrative contact and the voice and fax telephone number of the billing contact as required under the Registration Agreement. See Sud-Chemie AG v. tonsil.com, D2000-0376 (WIPO, July 3, 2000) (failure to provide contact information as required under the Registration Agreement is evidence of bad faith).

2. Deliberate steps to conceal true identity. See Telstra Corporation v. Nuclear Marshmallows, D2000-0003 (finding bad faith where the "Respondent has taken deliberate steps to ensure that its true identity cannot be determined and communication with it cannot be made."); Yahoo!, Inc. v. Eitan Zviely, D2000-0273 (WIPO, June 14, 2000) (finding that "[Respondentís] registrations under phony names" is evidence of bad faith registration and use); Salomon Smith Barney Inc. v. Salomon Internet Services, D2000-0668 9 (WIPO, September 14, 2000) (finding bad faith use and registration where Respondent "has taken steps to conceal its true identity");

3. Providing false and misleading information in connection with the registration of the Domain Name. See Home Director, Inc. v. HomeDirector, D2000-0111 (WIPO, April 11, 2000) (finding bad faith use and registration where Respondent used "false and misleading information in connection with the registration of the Domain Name");

4. Using the name of an unidentifiable business entity. See 3636275 Canada v. eResolution.com, D2000-0110 (finding bad faith use and registration where the Domain Name "is an unidentified business name of an unidentified business entity"); Salomon Smith Barney Inc. v. Salomon Internet Services, D2000-0668 (finding bad faith use and registration where Respondent has operated "under a name that is not a registered business name and by actively providing false contact details to NSI and by Respondentís passive use of the Web site");

5. Failure to provide conventional information for one engaged in proper business activities. See 3636275 Canada v. eResolution.com, D2000-0110 (finding bad faith use and registration where Respondent has provided a means of communication and contact that are, to say the least, unusual and even questionable for someone conducting a business");

6. Failure to provide sufficient contact information to the Registrar. See Sud-Chemie AG v. tonsil.com, D2000-0376 (finding bad faith use and registration where Complainant "was unsuccessful in its attempts to contact Respondent by using the contact details in the Registrarís registry");

7. Failure to provide a street address. See 3636275 Canada v. eResolution.com, D2000-0110 (finding bad faith use and registration where Respondent has not provided a street address . . .").

Respondentís provision of false contact information constitutes "bad faith" as defined by the Anticybersquatting Consumer Protection Act, 15 U.S.C. ß 1125(d)(1)(B)(I)(VII) (describing "the personís provision of material and misleading false contact information when applying for the registration of a domain name" as bad faith under the statute). That conduct should likewise constitute evidence of bad faith under the non-exclusive list of bad faith factors enumerated in the ICANN policy.

While any one of the circumstances noted above might on its own be inconclusive evidence of bad faith, when present in combination and in the total absence of any basis for a finding of good faith, the conclusion seems inescapable that this is an instance of abusive registration that is contrary to the Policy.

Accordingly, I find that Complainant has met its burden under Paragraph 4(a)(iii) of the Policy.

 

7. Conclusion

I conclude that the Domain Name is identical to a mark in which Complainant has prior rights, that the Registrant lacks any right or legitimate interest in the Domain Name, and that the Domain Name was registered and used in bad faith. Therefore, Complainant's request for transfer of <lpc.com> is granted.

 


 

Mark V. B. Partridge
Panelist

Dated: April 11, 2001