WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Resicom Corporation, Inc v. Damien Macafee
Case No. D2001-0988
1. The Parties
The Complainant is Resicom Corporation, Inc, an Illinios corporation with its principal place of business in Doylestown, Pennsylvania. The Claimant's authorised representative in this administrative proceeding is Mr. Jordan M. Cramer, Levenfeld Pearlstein of 33W Munro, 21st Floor, Chicago, Illinios 60603.
The respondent is Mr. Damien Macafee of 69 Charlotte Street, London, UK, W1P 1LA.
2. The Domain Name and Registrar
The domain name in dispute is: <resicom.com>.
The Registrar with which the Domain Name is registered is BulkRegister.com of 10 East Baltimore Street, Suite 1500, Baltimore MD 21202.
3. Procedural History
On August 3, 2001, the Center transmitted acknowledgment of receipt of complaint. On August 3, 2001, the Center transmitted a request for register verification to BulkRegister.com in connection with this case. On August 4, 2001, BulkRegister.com sent via e-mail to the Center a verification response confirming that the Respondent is the registrant.
On August 8, 2001, the Center verified the Complaint satisfied the requirements of the ICANN Uniform Domain Name Dispute Resolution Policy (the 'Policy'), the Rules for Uniform Domain Name Dispute Resolution Policy (the 'Rules') and the Supplemental Rules for Uniform Domain Name Dispute Resolution (the 'Supplemental Rules').
On August 8, 2001, the Center formally commenced this proceeding and sought to notify the Respondent that its response would be due by August 28, 2001. The Center notified the Respondent of default on August 29, 2001.
On September 11, 2001, the WIPO Arbitration and Mediation Center notified the parties that an Administrative Panel had been appointed consisting of a single member: Professor Michael Charles Pryles, who had submitted a Statement of Acceptance and Declaration of Impartiality and Independence.
4. Factual Background
The Complainant is the owner of a registered trademark 'resicom' since September 28, 1999, in the USA. The registered trademark has been and continues to be used in connection with the Complainant's provision of telephone communication services since August 29, 1988.
It appears from annexures to the Complaint that the Domain Name resolves to an 'under construction' web page, which contains a link to another page on which advertising appears.
The Complainant has unsuccessfully attempted to contact the Respondent by sending demand letters by Federal Express to his address. Further, the Complainant has also unsuccessfully attempted to contact Mr. James M van Johns who is the administrative contact for 'Thoroughfare.com and 'Infadotnet', who at one time has had links posted on the Domain Name.
The Respondent has not filed a response. According to details lodged with BulkRegister.com, the Respondent in this administrative proceeding is Mr. Damien Macafee. No other information is known about the Respondent.
The Complainant bears no relationship to the Respondent or any business associated with the Respondent. The Respondent has owned the Domain Name since at least June 19, 2001.
5. Parties' Contentions
A. The Complainant's Assertions
The Complainant submits that the Respondent's Domain Name is identical in all respects to the Complainant's registered trademark and thus is confusingly similar to the mark. Evidence is provided in annexures to the Complainant's filing that the Respondent and related entities, have merely indicated on the Domain Name that the word 'resicom.com' has been reserved.
The Complainant contends that the Domain Name is being used for irreputable purposes evidenced by links to 'Infadotnet' which result in web pages reading 'locked by AOL'.
The Complainant contends that the Respondent has an established history of obtaining domain names that have no relation to his name, business or legitimate interests, posting a statement on those sites that the Domain Name in question has been reserved and a web site is coming soon, and ignoring demands to relinquish the name.
B. The Respondent's Assertions
No response has been filed by the Respondent.
6. Discussion And Findings
Paragraph 4(a) of the Policy requires that the complainant must prove each of the following:
- The domain names are identical or confusingly similar to the trade marks; and
- The respondent has no right or legitimate interest in respect of the domain names; and
- The domain names have been registered and are being used in bad faith.
Paragraph 4(b) of the Policy sets out four illustrative circumstances that, if proved, constitute evidence of bad faith as required by paragraph 4(a)(iii) referred to above.
Paragraph 4(c) of the Policy sets out three illustrative circumstances that, if proved, constitute evidence of a right or legitimate interest as described in paragraph 4(a)(ii) referred to above.
B. Domain Names Identical / Confusingly Similar
The Domain Name belonging to the Respondent is <resicom.com>. The registered trademark belonging to the Complainant is 'resicom'. In view of the above, the administrative panel finds that the Domain Name is identical to the registered trademark of the Complainant.
C. No Right or Legitimate Interest
The Complainant has not licensed or otherwise permitted the Respondent to use its registered trademark or to apply for any Domain Name incorporating any of those marks, nor has the Respondent ever been known by this name. The Respondent, as stated earlier, has failed to invoke any circumstance which could demonstrate, pursuant to paragraph 4(c) of the Policy, any rights or legitimate interests in the Domain Name.
The Administrative Panel, therefore, finds that the Respondent has no right or legitimate interest in the Domain Name.
D. Domain Names Registered and used in Bad Faith
Several facts have to be taken into consideration when assessing the absence/presence of bad faith in this matter:
(a) 'resicom' is a registered trademark of the Complainant;
(b) the Domain Name resolves to an under construction 'web page'. The evidence submitted by the Complainant demonstrates that at a certain time, a link was placed on this page resolving to a web page used for irreputable purposes;
(c) no response has been submitted.
The Panel finds it unnecessary to determine whether regard can be had to other cases where the Respondent's registered Domain Names have been transferred. On the facts of this case alone, the Panel finds that the Respondent has registered or acquired the Domain Name primarily for the purpose of deriving an illegitimate commercial benefit.
I find that in view of the above the Domain Names should be transferred to the Complainant.
Professor Michael Charles Pryles
Dated: September 25, 2001