WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
ASSiST Applied Software Solutions in Science and Technology AG
Case No. DBIZ2002-00209
1. The Parties
Complainant is ASSiST Applied Software Solutions in Science and Technology AG, represented by Ms. Sarah Dutler, Weiherweg 3, CH-4103 Oberwil, Baselland, Switzerland, hereinafter the "Complainant".
Respondent is International Newcastle, 33186, Miami, Florida, United States of America, hereinafter the "Respondent".
2. Domain Name and Registrar
The domain name in dispute is <assist.biz>.
The registrar for the disputed domain name is iHoldings.com Inc., 13205 SW 137th Ave., Suite 133, Miami, Florida, United States of America.
3. Procedural History
The essential procedural history of the administrative proceeding is as follows:
(a) Complainant initiated the proceeding by the filing of a complaint, received by the WIPO Arbitration and Mediation Center ("WIPO") on April 28, 2002, by electronic mail, by facsimile on April 29, 2002, and in hardcopy on April 30, 2002. On May 10, 2002, WIPO sent an Acknowledgement of Receipt of the Complaint to the Complainant.
(b) On June 6, 2002, WIPO transmitted Notification of the Complaint and Commencement of the Administrative Proceeding in Case No. DBIZ2002-00209 to the Respondent, after having satisfied itself that the Complainant had complied with all formal requirements pursuant to the Start-up Trademark Opposition Policy for .BIZ ("STOP") adopted by NeuLevel Inc. and approved by the Internet Corporation for Assigned Names and Numbers ("ICANN") on May 11, 2001, the Rules for Start-up Trademark Opposition Policy (the "STOP Rules") and the WIPO Supplemental Rules for Start-up Trademark Opposition Policy for .BIZ (the "WIPO Supplemental STOP Rules").
(c) No Response has been submitted by the Respondent. Accordingly, WIPO issued a Notification of Respondent Default on July 1, 2002.
(d) WIPO invited Mr. Peter Nitter to serve as a panelist. Having received his Statement of Acceptance and Declaration of Impartiality and Independence, the parties were notified of the Appointment of Administrative Panel on July 9, 2002.
(e) The Administrative Panel finds that it is properly constituted and appointed in accordance with the STOP and the STOP Supplemental Rules, and shall issue its Decision based on the STOP, the STOP Rules and the WIPO Supplemental STOP Rules. The proceedings have been conducted in English.
4. Factual Background
After the Complainantís assertions, supported by the documents enclosed as annexes to the complaint, and undisputed by Respondent because of its default, the Panel finds the following:
Complainant has been established for over 10 years as a legal company in Switzerland. ASSIST has been an acronym of the Complainant since December 1991, and is also a trademark in which Complainant has rights. Complainant filed an IP claim for ASSIST on June 18, 2001, but the date of the first usage of the name was erroneously set to 2001.
5. Partiesí Contentions
The Complainant asserts that:
The domain name at issue is identical to Complainantís trademark ASSIST.
The Respondent has no right or legitimate interest in respect of the domain name at issue, and is only interested in the economics of it.
The Complainant requests the Administrative Panel issue a decision that the contested domain name must be transferred to the Complainant.
The Respondent has not submitted a Response, and is thus in default. Respondent has neither made any submissions whatsoever after the Notification of Respondent Default.
6. Discussion and Findings
Paragraph 4(a) of the STOP lists three circumstances that the Complainant has the burden of proving are present in order to succeed with the administrative proceeding:
i. the domain name is identical to a trademark or service mark in which the complainant has rights; and
ii. the respondent has no rights or legitimate interests in respect of such domain name; and
iii. the domain name has been registered or is being used in bad faith.
6.1 Identity to a trademark or service mark in which the Complainant has rights
The Complainant has not provided any copies of trademark registrations.
Without registration, there is no presumption of validity to Complainantís claim of exclusive rights in the word "ASSIST" alone, and Complainant must prove that this word has acquired distinctiveness through extensive use and that Complainant has established rights to the word by such use.
The Complainant has not provided any documentation as to prove that the word has acquired distinctiveness or that rights to the trademark have been established by use.
Accordingly, the Panel finds that Complainant has failed to prove that it holds trademark rights to ASSIST through registration or use, and has thus failed to prove the requirements of Paragraph 4(a)(i) of the STOP.
6.2 Rights or legitimate interests in the domain name and Registration or use in bad faith
Given the Panelís finding that the Complainant has failed to prove the requirements of Paragraph 4(a)(i), it is unnecessary for the Panel to consider whether Respondent has any rights or legitimate interests in respect of the domain name at issue, or whether the domain name was registered or is being used in bad faith, pursuant to Paragraph 4(a)(ii) and (iii) of the STOP.
However, the Panel would like to point out that Complainant has failed to invoke both the requirement of registration or use of the domain name in bad faith, and any circumstances to support such requirement.
The Complainant having failed to prove the requirements of Paragraph 4(a)(i) of the STOP, the Panel dismisses the Complaint.
As the Respondent has not demonstrated legitimate rights to the domain name at issue, and the Complainant has failed to prove that the domain name was registered or used in bad faith by Respondent, pursuant to Paragraph 15(e)(iii) of the STOP Rules subsequent challenges under the STOP regarding the domain name at issue shall be permitted.
Peter G. Nitter
Dated: 23 July 2002