WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
SkillSoft Corporation v. R & S Mica Inc. and Julie Radhakrishnan
Case No. D2002-1065
1. The Parties
The Complainant is SkillSoft Corporation, ("Skillsoft") of New Hampshire, United States of America, ("USA").
The Respondents are R & S Mica Inc. and Julie Radhakrishnan of New Hampshire, USA.
2. The Domain Names and Registrar
The disputed domain names are <skillsoft.net> and <skillsoft.org>, both registered with Register.com, Inc.
3. Procedural History
Skillsoft filed a Complaint with the WIPO Arbitration and Mediation Center (the "Center") on November 20, 2002. The Center subsequently verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the "Policy"), the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules"), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the "Supplemental Rules").
The Center notified the Respondents of the Complaint on November 26, 2002. The Respondents submitted a timely Response to the Complaint on December 14, 2002.
The Center appointed the undersigned as sole panelist in this matter on January 8, 2003. On January 14, 2003, the Panel issued Administrative Panel Procedural Order No. 1 ("Procedural Order No. 1") requesting that Respondents furnish the Panel with certain specified statements and documents within five (5) working days from the day of the Order. The Center transmitted Procedural Order No. 1 to the parties on January 15, 2003. On January 21, 2003, the Center issued a reminder to Respondents of the pending requests for statements and documents in Procedural Order No. 1. On January 24, 2003, the Center advised the undersigned that the Respondents had furnished none of the statements or documents requested in Procedural Order No. 1.
4. Factual Background
Complainant is a Delaware corporation headquartered in Nashua, New Hampshire. Complainant is the owner of U.S. Reg. No. 2,469,531 for the mark SKILLSOFT as applied to "education computer software for providing, creating, and deploying computer-based courses of study in the fields of business skills education and professional development, and for tracking and reporting learning results relating to the courses of study." The Ď531 registration claims use in commerce since March 15, 1999. Complainant operates an active web site associated with "www.skillsoft.com".
The Respondents are a corporation and an individual both located in Amherst, New Hampshire. Respondents registered the domain names <skillsoft.net> and <skillsoft.org> on October 6, 1999. In an unverified pro se Response dated December 14, 2002, Respondents stated that "our companiesí expertise of services is to supply skilled software consultants to implement software to companies and corporations." As of the date of this decision, the disputed domain names were not associated with any active web site.
On September 26, 2002, Complainant made written demand on Respondents that they transfer the domain name <skillsoft.net> to Complainant. Complainant alleges that on October 15, 2002, its counsel spoke by telephone with Respondent Julie Radhakrishnan and reiterated Complainantís demand for transfer of the domain name <skillsoft.net>. Respondents refused Complainantís requests.
5. Partiesí Contentions
Complainant contends that the domain names <skillsoft.net> and <skillsoft.org> are identical and confusingly similar to the registered service mark, SKILLSOFT, in which Complainant has rights. Complainant further contends that Respondents have no rights or genuine interests in the domain names <skillsoft.net> or <skillsoft.org>. Finally, Complainant alleges the domain names <skillsoft.net> and <skillsoft.org> were registered and are being used in bad faith.
Respondents contend that their "companiesí expertise of services is to supply skilled software consultants to implement software to companies and corporations." Respondents further contend that before they applied for registration of the disputed domain names, Respondents made "a concerted effort to find out if any company or respective individual had registered or filed for registration of a trademark or patent" and Respondentsí "searches came up negative and we therefore went ahead and registered the domain names." Respondents deny having any purpose of holding on to the names and thereafter selling them to another person for a valuable premium and consideration.
6. Discussion and Findings
Paragraph 4(a) of the Policy entitles a Complainant to seek an administrative transfer of a second level Internet domain name in the event that it "proves," to the satisfaction of the Panel, three predicates: (1) an accused domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; (2) a registrant has no rights or legitimate interests in respect of the accused domain name; and (3) a registrantís domain name has been registered and is being used in bad faith. A fact is "proved," for purposes of the Policy, when it is "more likely to be true than not true based on the evidence." Ciccone v. Parisi, WIPO Case No. D2000-0847 (October 12, 2000).
A. Similarity of the Disputed Domain Names and Complainantís Mark
The Panel finds that the disputed domain names, <skillsoft.net> and <skillsoft.org>, are legally identical to Complainantís registered service mark SKILLSOFT. Respondents did not dispute this point in their unverified Response to the Complaint.
B. Rights or Legitimate Interests
Complainant has presented evidence which tends to show that Respondents lack any rights or legitimate interests in the disputed domain names. The Response served by Respondents alleges that "our companiesí expertise of services is to supply skilled software consultants to implement software to companies and corporations"; however, the Response did not comply with Paragraph 5 of the Rules, which requires a certification that information put forward in a Response is "complete and accurate" and "is not being presented for any improper purpose." The Response also did not annex any documentary or other evidence confirming factual assertions made by Respondents, even though Respondentsí assertions were of a type which, if truthful, would ordinarily be reflected in documentary evidence.
Although a Panel may draw inferences from a Partyís failure to submit evidence in response to a Complaint, the Panel, in the exercise of its discretion, and in view of the pro se nature of the Response, issued Procedural Order No. 1 calling out to Respondents the deficiencies in the Response and providing them with an opportunity to provide additional statements and documents corroborating allegations made in the Response. Respondents were requested, for example, to provide samples of dated invoices for software consulting services provided by Respondents to corporations or companies. As noted above, the Respondents failed to respond in any way to Procedural Order No. 1.
Based on the entirety of the record including the Respondentsí failure to provide any statements or documents requested in Procedural Order No. 1, the Panel concludes that Complainant has proved, to the Panelís satisfaction, that Respondents have no rights or legitimate interests in the disputed domain names.
C. Bad Faith Registration and Use
Paragraph 4(b) of the Policy provides a non-exclusive list of circumstances which, if found by a Panel to be present, constitute "evidence of the registration and use of a domain name in bad faith." The Policy makes clear that a "bad faith" determination can be based on circumstances other than the four examples listed in Paragraph 4(b) of the Policy.
The Policy does not define the term "bad faith." The examples of "circumstances" recognized as "evidence" of "bad faith" in Paragraph 4(b) of the Policy embody diverse concepts reminiscent of unjust enrichment, misappropriation, tortious interference with prospective economic advantage, trademark infringement, and "unfair" business behavior in a general sense. The examples all require that a Respondent have acted with a particular state of mind, such as "primarily for the purpose of disrupting the business of a competitor," or "in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name."
Based on the entirety of the record, the Panel is satisfied that it is more likely true, than not true, that Respondents registered and have used the domain names <skillsoft.net> and <skillsoft.org> in "bad faith" within the meaning of the Policy. Respondents submitted no evidence of any bona fide use of these domain names in association with a trade or business, notwithstanding Respondentsí assertion that their "companiesí expertise of services is to supply skilled software consultants to implement software to companies and corporations." From the Respondentsí failure to submit any statements or documents requested in Procedural Order No. 1, the Panel finds that it is more likely true, than not true, that Respondentsí unverified, purported description of their "companiesí expertise" is false and pretextual.
Respondentsí uncertified Response claimed that Respondents "made a concerted effort to find out if any company or respective individual had registered or filed with registration of a trademark or patent" and "[o]ur searches came up negative and we therefore registered the domain names." It is, therefore, inexplicable that Respondents neither furnished any evidence of these alleged "searches" or offered any explanation for why no evidence concerning the alleged searches was put forward. The "searches" referred to in the Response were among the documents requested in Procedural Order No. 1 and not provided by Respondents. Once again, the Respondentsí total non-response to Procedural Order No. 1 more than amply supports an inference that Respondentsí explanation of their conduct is pretextual, and that Respondents have registered and used the disputed domain names in bad faith.
The record shows without contradiction that Respondents are located a short distance from Complainantís corporate headquarters in Nashua, New Hampshire, USA. The domain names <skillsoft.net> and <skillsoft.org> are identical to Complainantís SKILLSOFT service mark and were registered approximately six months after Complainant commenced use of SKILLSOFT in the field of computer software. Respondents have not denied being aware of Complainantís prior use of the mark SKILLSOFT in association with computer software prior to Respondentsí registration of the disputed domain names in October 1999. Respondents have proffered only what the Panel has found are likely pretextual and wholly unsupported explanations for the registration and use of the disputed domain names.
I find in favor of the Complainant. The disputed domain names are identical to a service mark in which the Complainant has rights. Complainant has proved to my satisfaction that the Respondent lacks rights or legitimate interests in the disputed domain names and the disputed domain names have been registered and used in bad faith.
I therefore decide the disputed domain names, <skillsoft.net> and <skillsoft.org>, should be transferred to Complainant.
James W. Dabney
Dated: February 11, 2003