WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Rug Doctor LP v. Coldwell Banker Burnet
Case No. DBIZ2001-00047
1. The Parties
The Complainant is Rug Doctor LP, 4701 Old Shephard Place, Plano, Texas 75093-0965, USA.
The Respondent is Coldwell Banker Burnet, 270-4611 Viking Way, Richmond, BC V6V 2K9, Canada.
2. The Domain Name and Registrar
The contested Domain Name is <everfresh.biz> ("the Domain Name").
The Registrar is Internet Domain Registrars d.b.a. Registrars.com.
3. Procedural History
The Complaint was received by the WIPO Arbitration and Mediation Center ("the Center") by email on December 15, 2001, and in hard copy form on December 18, 2001. The Center has verified that the Complaint satisfies the formal requirements of the Start-up Trademark Opposition Policy ("the STOP") and the Rules relating thereto and that payment was properly made. The Administrative Panel ("the Panel") is satisfied that this is the case.
The Complaint was properly notified in accordance with the STOP.
On December 18, 2001, the Center received a Supplemental Filing from the Complainant by email and in hardcopy form on December 27, 2001.
An email communication was received by the Center on January 15, 2002, from the alleged Respondent. This email is significant, it reads as follows:
"I am in receipt of a Notification of STOP Complaint and Commencement of Administrative Proceeding relating to the above case.
I am the Vice President of Sales Administration for Coldwell Banker Burnet, which is a DBA for Burnet Realty, Inc., which is a Minnesota corporation conducting real estate sales and related services in Minnesota and western Wisconsin. Coldwell Banker Burnet (of Minnesota and Wisconsin) must be a different entity than the Coldwell Banker Burnet, address of 270 -4611 Viking Way, Richmond BC V6V 2K9 and our corporate address has always been 7550 France Avenue S., Suite 300, Edina, MN. 55435.
Coldwell Banker Burnet (of Minnesota and Wisconsin) has never executed a .BIZ Registration Agreement and as such we are not subject to any of the terms, conditions, or rules applicable to the same, and we do not wish to incur any expenses related to the complainant resolving their problem, but we are willing to cooperate to facilitate their correcting this matter.
As Mr. Leonard MacKinnon stated in his letter to Ms. Chicoine dated December 14, 2001, someone either has made a mistake registering this name to Coldwell Banker Burnet, or there is a Coldwell Banker Burnet located at 270 Ė 4611 Viking Way, Richmond, BC V6V 2K9, that is a totally different and unrelated entity to Coldwell Banker Burnet (of Minnesota and Wisconsin).
Coldwell Banker Burnet (of Minnesota and Wisconsin) has no interest, never has had any interest and never intends to have any interest in everfresh.biz and relinquishes any purported claims or rights in this domain name to Caroline G. Chicoine of Thompson Coburn LLP and her client Rug Doctor LP.
I will agree to reasonably cooperate in executing any such documents needed to accomplish this.
Please inform me if this is sufficient to help you resolve this. I will await your response.
Thomas L. Rehman
Vice President of Sales Administration
Coldwell Banker Burnet
7550 France Avenue S., Suite 300
Edina, MN. 55435"
On January 16, 2002, the Center notified the Respondent of the Complaint in the usual manner and informed the Respondent inter alia that the last day for sending its Response to the Complainant and to the Center was January 30, 2002.
No Response was received and on January 31, 2002, the Center issued a Notification of Respondent Default.
The Panel was properly constituted. The undersigned Panelist submitted a Statement of Acceptance and Declaration of Impartiality and Independence.
No further submissions were received by the Center or the Panel.
4. Factual Background
The Complainant was founded in 1972 and is a substantial organization engaged in the manufacture, sale and service of carpet cleaning products and machines. It has over thirty warehouse distribution plants and service centres around the United States.
The Complainant has been using the trade mark EVERFRESH in the United States in relation to rug and room deodorisers since at least as early as January 1980, and on cleaning preparations for use on rugs, carpets, upholstery etc since at least as early as April 2000.
The Complainant has produced copies of various trade mark registration certificates for the word EVERFRESH namely:-
(i) the certificate for registration number 1,219,651 registered in the name of Blue Lustre Home Care Products Inc on December 14, 1982, and assigned to the Complainant on November 14, 2001;
(ii) registration number 2,398,515 registered in the name of the Complainant on October 24, 2000.
The true identity of the Respondent is unclear. There is a Coldwell Banker Burnet, which is based in Minnesota and is engaged in the field of realty services. However, as is apparent from the email from Thomas Rehman quoted in full above, that Coldwell Banker Burnet is not the Respondent.
The Complainantís Attorney has attempted to contact the Administrative Contact for the Domain Name, but without success and has also been in touch with Registrars.com with a view to clarifying the position. Registrars.com has confirmed that the Respondent, as identified on the Whois record, is the registrant.
The Domain Name was registered with the registrar in question on November 19, 2001.
5. Partiesí Contentions
The Complainant contends that the Domain Name is identical to the Complainantís trade mark EVERFRESH, that the Respondent has no rights or legitimate interests in respect of the Domain Name and that the Domain Name was registered in bad faith.
The Complainant relies on the facts as set out above and relies too on a conversation that the Complainantís Attorney has had with the Registrar in the course of which she was informed that Dollar Domain Name (the Administrative Contact for the Domain Name, J Tan has the email address < email@example.com>) is a domain name dealer.
The Complainant contends that as Coldwell Banker Burnet has no interest in the Domain Name, the only plausible reason for it having been registered must have been for the purpose of selling, renting or otherwise transferring it to the Complainant or to a competitor of the Complainant for valuable consideration in excess of the Domain Name registrantís out of pocket costs directly related to the Domain Name.
The Respondent has not responded.
6. Discussion and Findings
According to paragraph 4(a) of the STOP, the Complainant must prove that
(i) The Domain Name is identical to a trade mark or service mark in which the Complainant has rights; and
(ii) The Respondent has no rights or legitimate interest in respect of the Domain Name; and
(iii) The Domain Name has been registered or is being used in bad faith.
Rule 5(e) provides that "if a Respondent does not submit a Response, in the absence of exceptional circumstances, the Panel shall decide the dispute based upon the Complaint."
The Panel has nothing before it to indicate any exceptional circumstances and now proceeds to decide the dispute on the basis of the Complaint.
From the facts as related in the Complaint by the Complainant and not contradicted by the Respondent, it would appear that the Respondentís name on the Whois record is false. The Respondent had the opportunity of demonstrating the existence of another Coldwell Banker Burnet at the Whois record address but has not taken up that opportunity.
Identical or confusingly similar
The Complainantís trade mark is EVERFRESH. The Domain Name comprises the Complainantís trade mark EVERFRESH and the generic domain suffix.
The Panel finds that the Domain Name is identical to a trade mark in which the Complainant has rights.
Respondentís Rights or Legitimate Interests
The name of the Respondent identified in the Whois record is a false name. On that basis, manifestly, the Respondent cannot have any rights or legitimate interests in respect of the Domain Name, nor has anyone sought to assert otherwise in this administrative proceeding.
Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name.
In the face of a Whois record comprising a false name and address, the Panel has no difficulty in concluding that the registration was made for a bad faith purpose.
In the particular circumstances of this case, where the true identity of the Respondent is unknown, where the allegations of the Complainant remain unanswered and the administrative contact for the Domain Name seems to be a domain name dealer, the Panel finds that on the balance of probabilities the Domain Name was registered in bad faith within the meaning of paragraphs 4(a)(iii) and 4(b)(i) of the STOP.
In light of the foregoing findings, namely that the Domain Name is identical to a trade mark in which the Complainant has rights and that the Respondent has no rights or legitimate interests in respect of the Domain Name, and that the Domain Name was registered in bad faith, the Panel directs that the Domain Name <everfresh.biz> be transferred to the Complainant.
Dated: March 7, 2002