WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
VARTEC TELECOM, INC. v. Jim Olenbush
Case No. D2000-1092
1. The Parties
The Complainant is:
VarTec Telecom, Inc.
1600 Viceroy
Dallas, Texas 75235-2306
Represented by:
Sylvia Denise Davis, Esq.
Arter & Hadden LLP
1801 K Street, NW
Suite 400K
Washington, D.C. 20006
The Respondent is:
Jim Olenbush
1214 Riverbend Drive
Houston, Texas 77063
2. The Domain Name and Registrar
The domain name in dispute is "", and the Registrar is Network Solutions, Incorporated (NSI) of 505 Huntmar Park Drive, Herndon, Virginia 20170.
3. Procedural History
This dispute is to be resolved in accordance with the Uniform Policy for Domain Name Dispute Resolution (the Policy) and Rules (the Rules) approved by the Internet Corporation for Assigned Names and Numbers (ICANN) on October 24, 1999, and the World Intellectual Property Organization Arbitration and Mediation Center�s Supplemental Rules for Uniform Domain Name Dispute Resolution (the Center, the Supplemental Rules).
The Complaint was filed on August 18, 2000. On August 23, 2000, the Center requested that the Registrar NSI check and report back on the registrant for the disputed domain name "". On August 24, 2000, NSI reported to the Center that the registrant was the Respondent, Jim Olenbush.
On August 25, 2000, the Center forwarded a copy of the Complaint to Respondent by registered mail and by e-mail and this Proceeding officially began. Respondent did not file a Response with the Center within the twenty (20) day time limit, and on September 14, 2000 was declared to be in default.
The Administrative Panel submitted a Declaration of Impartiality and Independence on September 14, 2000 and the Center proceeded to appoint the Panel on September 15, 2000. The Panel finds the Center has adhered to the Policy and the Rules in administering this Case.
This Decision is due by September 28, 2000.
4. Factual Background
Complainant, a Texas corporation with offices in Dallas, contends it began using the service mark "10-10-811" about January 5, 1998, in offering its telecommunications services. Respondent registered the disputed domain name "" on October 5, 1999. Complainant is attempting to use this domain name proceeding to have the disputed domain name transferred to itself.
5. The Parties� Contentions
Complainant�s Contentions:
- Complainant, VarTec Telecom, Inc., currently has a pending application for federal registration of its "10-10-811" service mark for use in "telecommunications services, namely, telephone communication and electronic transmission of data and documents via computer terminals, in International Class 38" (Complaint, para. 13).
- The disputed domain name is identical or confusingly similar to the service mark in which VarTec has prior rights.
- Respondent has no rights or legitimate interests in the disputed domain name. Respondent is neither a licensee nor a subsidiary of Complainant.
- VarTec began using the disputed domain name as the service mark "10-10-811" more than one and a half years before Respondent registered the disputed domain name.
- Respondent registered and is using the disputed domain name in bad faith because, on or about November 15, 1999, Respondent sent Complainant an e-mail offering to sell the domain name to Complainant.
6. Discussion and Findings
In order for Complainant to prevail and have the disputed domain name "" transferred to it, Complainant must prove the following (the Policy, para 4(a)(i-iii):
- the domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
- the Respondent has no rights or legitimate interests in respect of the domain name; and
- the domain name was registered and is being used in bad faith
Identical or Confusingly Similar
Complainant contends it has a pending service mark registration for the disputed domain name, but the Panel sees no evidence of this. Complainant also claims to have begun using the disputed domain name to offer its telecommunications services a year and a half before Respondent registered the name, but there is little evidence of this as well. Luckily for Complainant, there is enough evidence in the correspondence produced (Complaint, Exhibits 3-5) to allow the Panel to ascertain that Complainant was using the disputed domain name, "", as its service mark "10-10-811" as early as November 1999. In fact, in this correspondence Respondent acknowledges having been a client of Complainant and to be familiar with the service mark. This same correspondence also shows quite clearly that Respondent knew the public was confusing his disputed domain name with Complainant and its telecommunication services.
By a small margin of the evidence, the Panel finds the disputed domain name is identical to a service mark in which Complainant has rights.
Legitimate Rights or Interests
Complainant states it has given Respondent no license or permission to use the disputed domain name. Respondent filed no response. Under the circumstances, the Panel accepts Complainant�s statement as true.
The Panel finds Respondent has no rights or interests in respect of the disputed domain name.
Registered and Used in Bad Faith
On November 15, 1999, Respondent sent an e-mail to Complainant (Complaint Exhibit 3) in which he stated:
"I am the owner of the domain and would like to offer it for sale to your company. The address is hosted by a free service right now, and I have received many emails inquiring about your service. (These people are clicking on the "contact the owner of this site" email even though there is nothing about long distance on the page.) I have been responding to all of them with a polite note and a link to . I can forward these to you if you like. The address has not been submitted to any search engine or directory-these potential customers are directly typing in the web address. The public seems to know your company by your 1010 access code better than by the actual company name. I don�t know the number of hits per day, but I would imagine it to be quite a lot as most people would probably not email me for info after not finding any info at the web address. Please let me know if you are interested."
From this letter, the Panel concludes that Respondent registered the domain in order to sell it for far more than he paid for it in contravention of the Policy (4(b)(i) and 4(b)(ii). This in turn leads the Panel to find that Respondent registered and was using the disputed domain name in bad faith.
Moreover, it also is apparent from Respondent�s November 15, 1999, e-mail to Complainant that Respondent was well aware that the general public was confusing Respondent�s website with the Complainant and its business of providing telecommunication services using the disputed domain name as a service mark. Thus, Respondent was well aware his domain name using Complainant�s service mark was disrupting Complainant�s business. This also is convincing evidence that Respondent registered and was using the disputed domain name in bad faith in contravention of the Policy (4(b)(iii).
7. Decision
In accordance with ICANN Policy para 4(i) and Rule 15, this Panel orders that the disputed domain name "" be transferred from the Respondent, Jim Olenbush, to the Complainant, VarTec Telecom, Inc. This domain name is identical to Complainant�s service mark, the Respondent has no rights or legitimate interests in this domain name, and Respondent registered and used the domain name in bad faith.
Dennis A. Foster
Sole Panelist
Dated: September 28, 2000
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