WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Powerstation LLC v Christoph De Vos
Case No. D2001-1017
1. The Parties
The Complainant is Powerstation LLC of 1171 Straits Turnpike Middlebury, CT 06762, United States of America.
The Respondent is Christoph De Vos of Jan Sonnevillestraat 31 Zwijnaarde, OVL B9052, Belgium.
2. The Domain Names and Registrars
The domain names in dispute are <powerstation.com> and <powerstation.tv>. The Registrars of the domain names as at the date of the complaint are respectively, Domain Discover and The .tv Corporation.
3. Procedural History
3.1 The Complaint was made pursuant to the Uniform Domain Name Dispute Resolution Policy approved by the Internet Corporation for Assigned Names and Numbers ("ICANN") on October 24, 1999 (the "Policy"), in accordance with the Rules for Uniform Domain Name Dispute Resolution Policy, also approved by ICANN on October 24, 1999 (the "Rules"), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy in effect as of December 1, 1999 (the "Supplemental Rules").
3.2 The Complaint was received by the WIPO Arbitration and Mediation Center (the "Center") by email on August 9, 2001, and in hard copy on August 14, 2001. The fees prescribed under the Supplemental Rules have been paid by the Complainant.
3.3 The Center sent the Complainant an Acknowledgement of Receipt of Complaint by email on August 15, 2001. The Center sent a request for verification to DomainDiscover on August 16, 2001, by email. The Registrar responded to the Center’s request on August 16, 2001, verifying:
- The Complaint had not been received.
- The domain name <powerstation.com> is currently registered through TierraNet Inc. DBA DomainDiscover.
- The Respondent is the current registrant of the domain name in dispute.
- Respondent’s contact details.
- The UDRP applies to the domain name.
- That the domain name is currently active.
3.4 The Center sent a request for verification to The .tv Corporation on August 16, 2001 by email. The Center sent the Registrar a request for verification reminder on August 20, 2001. The Registrar responded to the Center’s request on August 20, 2001, verifying:
- The Complaint had been received.
- The .tv Corporation is the Registrar for the domain name in dispute.
- The Respondent is the registrant of the domain name.
- The Respondent’s contact details.
- The UDRP applies to the domain name.
- The domain name is active.
3.5 The Center’s Formal Requirements Compliance Checklist was completed on August 22, 2001. The Case File History states that the Center also obtained a printout of the Disputed Webpage. This Webpage was not furnished to the Panel.
3.6 The Center sent a Notification of Complaint and Commencement of Administrative Proceeding to the Respondent by courier and email and to the Complainant by email on August 22, 2001.
3.7 The Respondent sent the Center an email on September 11, 2001, entitled ‘Response’. The Center sent the Respondent an email on September 12, 2001, advising there was no content in the Respondent’s email of September 11, 2001.
3.8 The Center sent the Respondent a Notification of Respondent Default on September 12, 2001, by email. The Respondent sent the Center their Response by email on September 12, 2001, and in hard copy on September 12, 2001.
3.9 The Center received an email from the Complainant’s representative on September 14, 2001, regarding time frames. A copy of an email sent by the Respondent on September 13, 2001, to the Complainant’s representative has also been furnished. It encloses a copy of the Response. The Complainant’s representative suggests the response may not have reached its destination due to the terrorist attacks of September 11, 2001.
3.10 The Center sent an email to the Respondent on September 17, 2001, requesting confirmation of transmittance of the Response. The Respondent replied by email on September 17, 2001, confirming that the Response had been transmitted in hardcopy to the addresses specified in the complaint document on September 11, 2001, by Belgian taxipost. The Center sent the Respondent an email acknowledging the Response on September 17, 2001.
3.11 The Center sent the parties a Notification of Appointment of Administrative Panel and Projected Decision Date on September 26, 2001.
3.12 The Center received an email from the Respondent dated October 2, 2001. It lists the Respondent’s objections to a request evidently made by the Complainant on October 1, 2001, to reply to the Response. The Center then received an email from the Complainant dated October 3, again requesting a right of reply.
3.13 The Panel denies the Complainant’s request to reply to the Response. Such a reply would not affect the outcome of the case and the Panel is satisfied that the Complainant has been given a fair opportunity to present its case.
4. Factual Background
4.1 Activities of the Complainant
The following information is asserted as a fact in the Complaint and remains uncontested:
"The Complainant PowerStation LLC is a Connecticut based limited liability corporation engaged in the business of providing a full range of entertainment services and event production services for weddings, bar/bat mitzvahs, corporate and college events, etc"
"Complainant has been in business since 1983 and has used the term "powerstation" commercially since 1983."
4.2 The Complainant’s trade marks
The following information is asserted as a fact in the Complaint and remains uncontested:
On February 29, 2000, Complainant obtained a service mark registration on the Principal Register from the United States Patent and Trademark Office ("USPTO") for the mark "POWERSTATION". This Service Mark gives the Complainant rights to use the mark in relation to entertainment services, namely, disk jockeys for parties and special events; entertainment in the nature of dance performances, magic shows and caricatures; lighting production services etc.
The Complainant has also obtained a service mark registration for "POWERSTATION" in Connecticut, New York, New Jersey, Rhode Island, New Hampshire, Vermont, Massachusetts, Pennsylvania and Maine.
4.3 Activities of the Respondent
The following information is asserted as a fact in the Response:
"During my career I have been involved in development of over 100+ websites for corporations, embassies and media outlets. As project manager for Belg media (Internet Service Provider) it has been my job to register domainnames for our clients."
The Respondent claims to have "developed the complete Powerstation concept for the Radio Network in Belgium" (emphasis in original) but it is not clear in which capacity this was done.
5. The Complainant’s Contentions
5.1 The Complainant asserts that each of the elements specified in paragraph 4(a) of the Policy have been satisfied.
5.2 In reference to paragraph 4(a)(i) of the policy, the Complainant asserts that the domain name in dispute is identical to the Complainant’s trademark as they are spelled identically.
5.3 In reference to paragraph 4(a)(ii) of the policy, the Complainant asserts that the Respondent should be considered as having no rights or legitimate interest in respect of the disputed domain name because:
i) The Respondent is not known by the term POWERSTATION; and
ii) The domain names were only registered in order to sell them; and
iii) The Complainant has never authorised the Respondent to use the Service Mark.
5.4 In reference to paragraph 4(a)(iii) of the policy, the Complainant asserts that the domain name should be considered as having been registered and used in bad faith because:
i) The Respondent registered the domain names with the intent of selling them:
"Respondent set forth the following language under the heading "Administrative Contact, Technical Contact, Zone Contact": "Christoph De Voss-Name for sale while site under construction [Annex 19]".
The Respondent is a member of <afternic.com>, which is a domain name clearinghouse that facilitates the buying and selling of domain names.
ii) The Respondent made no use of <powerstation.com> until the Complainant contacted the Respondent in 1999 offering to buy it.
iii) The use now being made of <powerstation.com> is not genuine:
"Registrant’s use of <powerstation.com> as a storefront is a sham as it is nothing more than his attempt to show a bona fide use where none actually exists. In that vein, as touted by <vstore.com> itself, anyone can "open an online store in just five minutes-for free…For the use of the Respondent’s Web site, <vstore.com> pays Respondent a Referral Fee for any product sold…Respondent has absolutely no obligations whatsoever in setting up a storefront through <vstore.com>…"
6. The Respondent’s Contentions
6.1 In relation to the allegation that the domain names in dispute are identical to the Complainant’s "powerstation" trademarks, the Respondent agrees that the domain names are similar to the Complainant’s trademarks but asserts that the domain name was in use four years before the Service Mark was first registered.
6.2 In relation to the allegation that the Respondent has no rights or legitimate interests in respect of the domain name, the Response denies this allegation and states (supported by a CD containing excerpts from a radio broadcast) that the Respondent has these rights and interests through his role in the development of "The Powerstation":
"As stated before, In 1996 we - me and the media company I worked for: Radio A.B.C, (aka Aksent Belga Contact) and Powerstation Radio Group - registered <powerstation.com> to be the web address for the Network "Portal". We had by that time already been using the name for 3 years on air."(emphasis in original)
"In 1996 when we had registered the <powerstation.com> domainname, we had already been running two private radio stations named The Powerstation for years…"
"I do have a legitimate interest in the domainnames registered, since I have developed the complete Powerstation concept for the Radio Network in Belgium…My profession as Program and Technical Director for the Powerstation and Project Manager for Belgamedia serve as just a few examples proving my rightful ownership."(emphasis in original)
6.3 In relation to the allegation that the disputed domain name has been registered and used in bad faith by the Respondent, the Response denies this allegation. The Respondent asserts that he is not in the business of buying and selling domain names. The Respondent alleges that the Complainant has made false and misleading statements and has tried to acquire the domain name from the Respondent:
"From 1997 on we have received communications (oral and in writing) from Mr. Vagnini stating he wanted to purchase the domainname already in use by us….Another deliberately false statement in the same sentence states that complainant contacted respondent after he has obtained the registered trademark…It should be noted that complainant contacted US and requested us to sell our domainname to him...Further in the complaint, complainant states that he asked us to transfer our domainname to him only after he would have successfully sold his own domain…"
"Since development costs for some of our projects were amounting rapidly, over time we considered letting go of the domain…At that moment we regretted our decision to sell the domainname after all…" (emphasis in original)
"No domains we own or domainnames by our customers have ever been sold via afternic, any other website or even directly…Domainnames listed at afternic were intended to attract partners, assisting in the development of our client’s and our own projects…All of the domains are actively in use…" (emphasis in original)
"The false and/or contradictory statements and allegations by complainant alone are proof itself to his continuous attempts to acquire our domainname." (emphasis in original)
6.4 The Respondent asserts that the domain name has always been legitimately used:
"Furthermore has <powerstation.com> always maintained an internet presence, first as the radio network’s website, afterwards for the e-store awaiting the launch of the <powerstation.com> portal to be launch second in line to another project. Our site has even been listed for years on several guides and linklists worldwide..." (emphasis in original)
6.5 The Respondent further asserts that he was not aware of the Complainant at the time of registration and that he is aware of several companies in the US and worldwide that use the name Powerstation.
7. Discussion and Panel Findings
This section is structured by reference to the elements required by paragraph 4 (a) of the Policy. The onus is on the Complainant to make out its case on the balance of probabilities.
7.1 Domain Name is identical or confusingly similar to Complainant’s Mark
The domain name <powerstation.com> is identical to the Complainant’s service mark, Powerstation. The Panel is satisfied that the gTLD suffix forming part of that domain name is incapable of serving any relevant distinguishing function. In relation to <powerstation.tv>, although the ccTLD may connote television, which seems to have some possible relevance to the business activities of the Respondent, the Panel is satisfied that the domain name is nevertheless at least confusingly similar to the Complainant’s Powerstation service mark.
The Panel therefore finds that the Complainant has proved paragraph 4(a)(i) of the Policy.
7.2 The Respondent has no rights or legitimate interests in the domain name
The Respondent was the Project Manager of Belga Media in 1997 (Certificate of Appreciation, Annex 2). The Respondent has furnished evidence linking himself and Belga Media with "The Powerstation" (Radio station) in Belgium 1996 (Annex 4).
The Complainant has merely asserted that the Respondent has no legitimate interest or right in the domain name. The Complainant relies on the fact that the Respondent has no links with the Complainant. However, the Panel is satisfied that many entities around the world, including the Respondent, use "Powerstation" for radio and other activities. Absent any evidence to the contrary, the Respondent appears to have a legitimate interest in the domain names in dispute. This Administrative Proceeding is not one in which contested positions can easily be explored. It is essentially confined to those cases where, on the face of the record, one party is able to demonstrate its case to the requisite level of proof. In this case, the Respondent has adduced sufficient evidence to make his Response plausible, and that is sufficient to overcome the Complainant’s assertions.
The Panel finds that the Complainant has not proved paragraph 4(a)(ii) of the Policy.
7.3 The domain name has been registered and is being used in bad faith.
The Respondent goes some way to accusing the Complainant of Reverse Domain Hijacking without explicitly stating it. The Respondent presents evidence of the Complainant approaching a "Mike McCarthney" to buy the domain name as early as 1997, stating that: "We have tried to contact you about the purchase of <Powerstation.com> several times." This is in direct contradiction to the Certification of Alfred Vagnini stating that he had never heard of Mike McCarney until an email of July 13, 1999. In any event, Alfred Vagnini states that he offered the Respondent $500 for <powerstation.com> and that his offer was rejected.
7.4 The Complainant’s case rests heavily on demonstrating that the Respondent has been trying to sell the domain to them. In this case it is unclear whether the Respondent has been trying to sell the domain name or whether the Complainant has been trying to buy it. The fact that the Respondent has not sold the domain name to the Complainant suggests that the Respondent has not been trying to sell it.
7.5 Both domain names are currently being utilised, albeit for different purposes. The site may have been used for different purposes over time, have been inactive at times or even for sale. The Respondent has attempted to explain these occurrences, and these explanations are not implausible. As noted above, this Administrative Proceeding is not one in which contested positions can easily be explored. In this case, the Respondent has adduced sufficient evidence to make his Response plausible, and absent more formal proceedings and litigation processes in which that evidence can be tested and the demeanour of witnesses considered, the Panel is incapable of inferring bad faith on the Respondent’s part.
7.6 The Panel therefore finds that the Complainant has not proved paragraph 4(a)(iii) of the Policy.
The Complainant having failed to prove the requirements of subparagraphs 4(a)(ii) and (iii) of the Policy, the Complaint is dismissed.
Philip N. Argy
Dated: October 10, 2001