WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Ingram Micro, Inc. v. Ingredients Among Modern Microwaves
Case No. D2002-0301
1. The Parties
The Complainant is Ingram Micro, Inc., 1600 East Saint Andrews Place, Santa Ana, California 92799, United States of America.
The Respondent is Ingredients Among Modern Microwaves, 6130 Flamingo Rd. #381,
Las Vegas, NV 89103, United States of America.
The Administrative Contact for the Respondent is Jacobson, Celeste.
2. The Domain Names and Registrar
The Domain Names are <ingrammmicro.org> and <ingrammmicro.net> and the Registrar is NamesDirect.com, Inc.
3. Procedural History
A Complaint was submitted electronically to the WIPO Arbitration and Mediation Center ("the Center") on March 28, 2002, and the signed original together with four copies forwarded by express courier was received on April 4, 2002. On April 5, 2002, the Center notified the registrar named in the Complaint, NamesDirect.com, Inc., of the dispute.
On April 9, 2002 the Registrar informed the Center that it was the registrar for the two domain names at issue. The Center on April 9, 2002, notified the Complainant that the Complaint was deficient due to the incorrect spelling of one of the domain names.
Complainant submitted an amendment by e-mail on April 9, 2002, correcting the remedy section of the complaint.
The Center determined that the amended Complaint satisfied the formal requirements of the Policy, the Rules for Uniform Domain Name Dispute Resolution Policy (the "Uniform Rules") and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the "Supplemental Rules").
No further formal deficiencies having been recorded, on April 10, 2002, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification") was transmitted to the Respondent (with copies to the Complainant, the Registrar, and ICANN), setting a deadline of April 30, 2002, by which the Respondent could file a Response to the Complaint. The Commencement Notification was transmitted to the Respondent by courier and by e-mail to the e-mail addresses indicated by the Registrar.
E-mail notification was sent to the addresses listed in the domain name registrations for the registrantís administrative, billing, and technical contacts. In addition, copies were e-mailed to <firstname.lastname@example.org> and <email@example.com> (the disputed domain names). No fatal error reports were received by the Center therefore it is presumed that these notices were delivered to the intended mailboxes.
The courierís tracking records indicate that the notice was delivered to the recipientís front desk on April 15, 2002, and signed for by D. McCullough.
No response having been received, on May 2, 2002, the Center sent Respondent an email Notification of Respondent Default. The hard copy was delivered by the courier to Respondent on May 6, 2002, and again signed for by D. McCullough.
On May 6, 2002, the Center sent a Notification of Panel Appointment, appointing Diane Cabell, who had previously submitted a Statement of Acceptance and Declaration of Impartiality and Independence. The decision was due by May 20, 2002.
4. Factual Background
Ingram Industries owns two trademarks that include the words "Ingram Micro" at least one of which, #1,620,552, is a word mark which has been on the USPTO Principal Registry since 1990, for use with distributorship services in the fields of computer and microcomputer products. Complainant submitted evidence of its substantial business activities and use of the Ingram Micro mark in many parts of the world. The Complainant asserts that it is a non-exclusive licensee of the mark owner with permission to bring this complaint on behalf of Ingram Industries.
In October 2001, Complainant initiated a UDRP proceeding, WIPO Case No. D2001-1252, against Kalron, Inc. ("Kalron") a California entity which was the registrant of the domain name <ingrammmicro.com>. That domain name is identical to the two domain names that are the subject of the current dispute except for different TLD extensions. All three domain names include the same misspelling of "ingram micro" with an extra "m."
Kalron responded to the WIPO Case No. D2001-1252 dispute and claimed to be acting on behalf of the "true" owner of the domain name, Celeste Jacobsen, who is the administrative contact for the Respondent in the current proceeding. Kalron claimed that Ms. Jacobsen intended to use the .com domain name for a non-profit site devoted to " the various aspects of microwaves and higher frequency equipment transmitting various wave forms into the environment." There was no support for this claim concerning Ms. Jacobsen in any document or registration data.
The Kalron decision, which was in favor of Complainant, indicates that the UDRP Panelist himself attempted to contact Ms. Jacobsen for verification but failed to reach her. In the present proceeding, she has also declined to respond to all notices from the Complainant and the Center.
The domain names that are the subject of the current dispute were both registered with NamesDirect.com, Inc. in November 2001, after Kalron had received notice of the first UDRP complaint. There is no evidence of any active use of these domain names.
5. Partiesí Contentions
The Complainant, Ingram Micro, Inc. asserts that it is a non-exclusive licensee of the Ingram Micro trademarks owned by a third party, Ingram Industries, and has authority from the mark owner to bring this UDRP action.
Complainant asserts that this is a case of typo-squatting whereby the domain name registrant sought to attract users by a slight misspelling of the mark. It denies that the registrant has any rights or legitimate interest in the domain names since it has failed to post any content to a website at this address and argues that the Kalron defense that the domain name refers to "Ingredients Among Modern Microwaves" (hereafter IAMM) is spurious since initials would not include an extra "m". It claims that the Respondent registered these domain names solely to harass Complainant and trade on Complainantís marks. By registering the identical domain name in two other TLDs after receiving notice of the UDRP complaint against the .com registration, the Respondent acted in bad faith. Further, Respondentís failure to respond (copies of the complaint sent by courier to Respondent have been refused and email messages have not generated any response) is additional evidence of this.
Respondent did not submit a response. There is no information of any kind to indicate either the nature or ownership of IAMM, which is listed as the domain name registrant. Ms. Jacobsen is listed as the administrative and billing contact, but there is no evidence of her specific relationship to the registrant. She may be an owner, or she may simply be a former employee who has moved on to a new position and no longer the party responding to matters relating to the domain names.
6. Discussion and Findings
To be successful in a UDRP proceeding, the Complainant must establish that it (i) the domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and (ii) the domain name holder has no rights or legitimate interests in respect of the domain name; and (iii) the domain name has been registered and is being used in bad faith. UDRP Policy 4(a).
A. Mark Rights
The Complainant is not the mark owner, but merely a non-exclusive licensee. Nonetheless, Section 4(a) does not limit itself to mark owners, but makes the procedure available to others who have rights in the mark. I find that the Complainant has sufficient rights to bring this Complaint. If the mark owner objects to Complainantís possession of the domain name, it may initiate its own action against the Complainant. The domain names are confusingly similar to the mark.
B. Rights or Legitimate Interests
There is no evidence that the Respondent has any particular right or legitimate interests in the domain names.
While one can speculate that some such interest may exist, the fact that messages and deliveries to the Respondentís contact addresses have failed to elicit any response indicates that the contact information is no longer accurate, or perhaps is addressed to personnel who are no longer associated with the domain name ownerís enterprise, or even that the Respondent is intentionally refusing to honor its registration agreement commitment to submit to the proceeding. In either event, it indicates a lack of serious intent to oversee or use the domain names for bona fide purposes.
C. Bad Faith
There is no evidence of bad faith use under UDRP hence the Complaint must fail. Section 4(a) of the UDRP requires that the Complainant prove both bad faith registration and bad faith use. Section 4(b) lays out some examples of bad faith use and of registration, but Respondent does not fall into any of these categories.
No effort has been made to sell the domain names to the mark owner or a competitor. The mark owner already had its preferred domain name registration, "http://www.ingrammicro.com", therefore the fact that Respondent registered the name in two different TLDs has not prevented the mark owner from reflecting the mark in a corresponding domain name. No evidence was provided of any attempt, other than registration of these domain names, to disrupt the business of a competitor. Because there is no substantiated connection between the Respondent in the Kalron case and the Respondent in the present case, the evidence in Kalron has no bearing on this proceeding. Notice to Kalron, a California corporation, is not notice to IAMM in Las Vegas; therefore Complainantís allegation that the .net and .org domain names were registered after such notice is not persuasive.
Lastly, there is no evidence under (b)(iv) that there has been any attempt to attract users to the site for commercial gain. There is no content on the sites, nor any indication that there ever has been. Again, unsubstantiated evidence in the Kalron case, where the .com site was redirected to Kalronís own commercial site, is not sufficient evidence against the Respondent in the current case.
It is the decision of this panelist that the Complainant has failed to establish bad faith use under Section 4(b), therefore the domain names shall remain with the Respondent. This decision is without prejudice to any future UDRP proceeding that the Complainant may bring should the Respondent engage in any active bad faith behavior at any future time.
Dated: May 15, 2002