WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Plymouth State College v. Domains, Best Domains
Case No. D2002-0939
1. The Parties
The Complainant is Plymouth State College, Plymouth, NH, United States of America, represented by Ronald F. Rodgers of United States of America.
The Respondent is Domains, Best Domains, C/O John Barry, Bronx, NY, United States of America.
2. The Domain Name and Registrar
The disputed domain name is registered with eNom.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on October 10, 2002. On October 14, 2002, the Center transmitted by email to eNom a request for registrar verification in connection with the domain name at issue. On October 15, 2002, eNom transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on October 21, 2002. The Center 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").
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on November 8, 2002. In accordance with the Rules, paragraph 5(a), the due date for Response was November 28, 2002. The Respondent did not submit any Response. Accordingly, the Center notified the Respondent of its default on December 3, 2002.
The Center appointed William L. LaFuze as the sole panelist in this matter on December 9, 2002. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
4. Factual Background
Complainant alleges facts which are not rebutted by Respondent and, for the reasons set forth in Paragraph 6b, are therefore assumed to be correct. Complainant is an institution of higher education and a component institution of the University System of New Hampshire. Complainant has built significant goodwill and name recognition as a public college in the State of New Hampshire. Complainant has used "Plymouth State College" continuously since 1963, and has common law trademark rights in the name. Respondent has no relationship with or permission from Complainant for the use of its name or mark. Subsequent to the use of "Plymouth State College" by Complainant, Respondent registered the domain name with eNom, and offered to sell it to Complainant.
5. Parties� Contentions
A. Complainant
Complainant has used "Plymouth State College" continuously since 1963, and has common law trademark rights in the name. Respondent has no relationship with or permission from Complainant for the use of its name or mark. The Respondent�s use of infringes upon the name and trademark of Complainant and clearly causes a likelihood of confusion as defined in the United States Lanham Act, 15 U.S.C. Section 1052(d). The use of Complainant�s name by Respondent for purposes wholly unrelated to the business of Complainant is misleading, threatens to harm the good name of Complainant, and constitutes an act of bad faith.
Complainant, through its Vice President for Financial Affairs, William Crangle, and its General Counsel, Ronald Rodgers, sent three cease and desist letters to John Barry on behalf of Respondent. Mr. Barry responded by telephone and offered to sell the domain name for $750. Complainant refused his offer and indicated that Complainant would be pursuing arbitration.
Complainant notes the case of University of Central Arkansas v. John Simms and John Barry, WIPO Case No. D2002-0316. Complainant alleges that the John Barry in the University of Central Arkansas case is the same John Barry to whom Complainant has corresponded and engaged in dialogue mentioned above in which Mr. Barry was acting on behalf of Respondent. Complainant alleges that Mr. Barry registered the domain name and tried to sell the domain name to the University of Central Arkansas for $1000. The WIPO Arbitration and Mediation Center determined that "the domain name registered by Respondents is identical or confusingly similar to the trademarks and service marks in which the Complainant has rights, that Respondents have no rights or legitimate interests in respect of the domain name, and that the Respondents� domain name has been registered and is being used in bad faith." The Panelist therefore ordered the registration of the domain name to be transferred to the University.
Complainant alleges that:
The domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights.
The domain name is confusingly similar to "Plymouth State College" which has been in constant use by Complainant since 1963. Consumers have used Complainant�s name to locate Complainant on the Internet and, instead of finding the Plymouth State College webpage, they were linked to the website entitled "". More recently, consumers have used Complainant�s name to locate Complainant�s webpage on the Internet and have been linked to .
The Respondent has no rights or legitimate interests in respect of the domain name.
Respondent has no rights or legitimate interests in the domain name . Respondent is not commonly known by the domain name at issue and has not acquired trademark or service mark rights in the domain name. Respondent has not requested or been given permission by Complainant to use .
The domain name was registered and is being used in bad faith.
Respondent registered and is using in bad faith. When Ronald Rodgers, the General Counsel for the University System of New Hampshire, contacted Respondent and asked him to cease and desist use of , Respondent stated that he would sell the domain name to Complainant for $750. Respondent intended to profit from the registration and sale of Complainant�s name.
B. Respondent
The Respondent did not reply to the Complainant�s contentions.
6. Discussion and Findings
A. Applicable Standard for Transfer
Under paragraph 15(a) of the Rules, the Panel must decide this Complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable. To qualify for cancellation or transfer, a Complainant must prove each element of paragraph 4(a) of the Policy, namely:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) Respondent has no rights or legitimate interests in respect of the domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
B. The Effect of Respondent�s Failure to File a Response
A respondent is not obliged to participate in a domain name dispute proceeding. But, if it fails to do so, asserted facts that are not unreasonable are taken as true and the respondent is subject to the inferences that flow naturally from the information provided by the complainant: Reuters Limited v. Global Net 2000, Inc., WIPO Case No. D2000-0441. See also Hewlett-Packard Company v. Full System, NAF Case No. FA 0094637; David G. Cook v. This Domain is For Sale, NAF Case No. FA0094957 and Gorstew Jamaica and Unique Vacations, Inc. v. Travel Concierge, NAF Case No. FA0094925. Accordingly, all asserted facts in the Complaint that are not unreasonable are taken as true.
C. Findings
1. Identical or Confusingly Similar between the Domain Name and Complainant�s Trademark in which it has rights
Complainant�s asserted prior common law use and ownership of the mark "Plymouth State College" is uncontested and is taken as true.
Complainant�s name and mark "Plymouth State College" is substantially identical to, and confusingly similar to, which has been registered as a domain name by Respondent. The use of ".com" and the deletion of spaces between the terms by Respondent in this domain name are not material, and of no legal consequence.
Consumers have used Complainant�s name to locate Complainant on the Internet and, instead of finding the Plymouth State College webpage, they were linked to the website entitled "www.". Also, consumers have used Complainant�s name to locate Complainant�s webpage on the Internet and have been linked to "www.". This evidence supports a finding of likelihood of confusion.
Complainant has established this element.
2. Rights or Legitimate Interests in the Domain Name by the Respondent
Respondent is not commonly known by the domain name at issue and has not acquired trademark or service mark rights in the domain name. Respondent has not requested or been given permission by Complainant to use . There is no evidence proffered by Respondent to show that it has any rights or legitimate interest in the domain name in question.
Accordingly, Complainant has established this element.
3. Registered and Used in Bad Faith
When Ronald Rodgers, the General Counsel for the University System of New Hampshire, contacted Respondent and asked him to cease and desist use of , Respondent stated that he would sell the domain name to Complainant for $750. It is reasonable to find that Respondent intended to profit from the domain name registration and sale of Complainant�s mark and name. Such intent is evidence of bad faith. The fact that Mr. Barry has been found to engage in similar conduct in University of Central Arkansas v. John Simms and John Barry,WIPO Case No. D2002-0316 provides further support for this finding. Respondent has made no effort to respond or justify the reasons underlying its registration of the domain name in question.
Complainant has established this element.
7. Decision
For all the foregoing reasons, in accordance with Paragraph 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name be transferred to the Complainant.
William L. LaFuze
Sole Panelist
Date: December 20, 2002
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