WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Time Equipment Corp. v. Stage Presence
Case No. D2003-0850
1. The Parties
The Complainant is Time Equipment Corp., South Richmond Hill, New York, of United States of America, represented by Stefan Kurant, United States of America.
The Respondent is Stage Presence, Holliston, MA, of United States of America.
2. The Domain Name and Registrar
The disputed domain names and are registered with Network Solutions, Inc. Registrar.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on October 24, 2003. On October 29, 2003, the Center transmitted by email to Network Solutions, Inc. Registrar a request for registrar verification in connection with the domain names at issue. On November 5, 2003, Network Solutions, Inc. Registrar 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 November 4, 2003. The Center verified that the Complaint together with the amendment to 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 6, 2003. In accordance with the Rules, paragraph 5(a), the due date for Response was November 26, 2003. The Respondent did not submit any response. Accordingly, the Center notified the Respondent�s default on November 27, 2003.
The Center appointed Mark Partridge as the sole panelist in this matter on December 9, 2003. 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
According to the undisputed allegations of the complaint, Complainant uses the name and mark TIME EQUIPMENT CORP. in connection with the sale and service of employee time recorders and time and attendance software. Complainant was registered as a New York State corporation in 1990.
Respondent Stage Presence was employed by Complainant until February 10, 2003. During his employment, he registered the disputed domain names at Complainant's request. Complainant used the domain names to promote its business. In September 27, 2003, Complainant learned that Respondent was listed as the Registrant of the disputed domain names. According to the complaint, after his employment had been terminated, Respondent changed the registrant information and redirected the domain names so that they no longer directed Internet users to Complainant's website.
5. Parties� Contentions
A. Complainant
Complainant asserts that the domain names are confusingly similar with its trademark TIME EQUIPMENT CORP, that Respondent has no rights or legitimate interest in the disputed domain names, and that Respondent registered and used the domain names in bad faith.
B. Respondent
The Respondent did not reply to the Complainant�s contentions.
6. Discussion and Findings
Paragraph 14 of the Rules provides that in the event of default the Panel "may draw such inferences therefrom as it considers appropriate."
Paragraph 15(a) of the Rules instructs the Panel that "A Panel shall decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules or principles of law that it deems applicable."
Both parties here are located in the U.S. law, so it is appropriate to apply U.S. legal principles. Under U.S. law, where a defendant has defaulted, the facts set forth in the plaintiff�s complaint are deemed admitted. The court, however, is required to evaluate the complaint to ensure that it properly states a claim. GlobalSantaFe Corp. v. G, 250 F.Supp.2d 610, 612 (E.D.Va. 2003).
Where a party fails to present evidence in its control, the Panel may draw adverse inferences regarding those facts. Mary-Lynn Mondich and American Vintage Wine Biscuits, Inc. v. Shane Brown, doing business as Big Daddy�s Antiques, WIPO Case No. D2000-0004 (February 16, 2000); State of Wisconsin v. Pro-Life Domains, Inc., WIPO Case No. D2003-0432 (August 4, 2003).
Paragraph 4(a) of the Policy requires that the Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(i) the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(ii) the Respondent 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.
Here, since Respondent has defaulted, it is appropriate to accept the facts asserted by Complainant and to draw adverse inferences of fact against Respondent. This dispute resolution procedure is accepted by the domain name registrant as a condition of registration. Therefore, a registrant should not gain any evidentiary benefit from its failure to participate.
A. Identical or Confusingly Similar
There is no indication the Complainant's name is registered as a trade or service mark.
The domain name is virtually identical to Complainant's name in salient part. The domain name appears to be a shorthand reference to Complainant and is confusingly similar to its name and mark.
I recognize that the phrase "time equipment" may be viewed as descriptive, or perhaps even generic, for the type of goods sold by Complainant, and that the scope of Complainant's rights is not firmly established by Complainant's submission. Nevertheless, accepting the facts stated in the complaint as true and drawing adverse inferences appropriately against the defaulting Respondent, I conclude that Complainant has prevailed on this element of its claim.
B. Rights or Legitimate Interests
Accepting the allegations of the complaint as true, Complainant has made a prima facie showing the Respondent lacks any rights or legitimate interest in the disputed domain names. It appears that Respondent has not made a bona fide offering of goods or services under the Domain Name, does not hold any trademark registrations relating to that name, and is not generally known by that name. Respondent has not rebutted this showing.
C. Registered and Used in Bad Faith
Based on the uncontested allegations of the complaint, it appears that Respondent is a disgruntled former employee of Complainant who registered the domain names on Complainant's behalf while employed and then modified the registration records to interfere with Complainant's use of the domain names. Based on the record submitted, and Respondents failure to respond, it appears more likely than not that Respondent has acted in bad faith to hijack the domain names used in connection with Complainant's business.
The Policy requires a finding of bad faith registration and use. I believe it would frustrate the purpose of the Policy to deny relief on the grounds that the domain names were initially registered in good faith on Complainant's behalf, although a strict reading of the Policy might appear to yield a different result. A finding of bad faith registration might be based on a conclusion that the initial registration was in bad faith because it allowed Respondent to control the registration. Bad faith registration might also be found as a result of Respondent's post-employment changes to the registrant information, creating a new, bad faith registration of the domain names. In any event, I believe the spirit of the Policy compels a finding of bad faith registration and use in this case given the Respondent's post-employment changes to the registration records for the domain names Respondent had originally registered on Complainant's behalf as Complainant's employee and agent.
7. Decision
For all the foregoing reasons, in accordance with Paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain names, and be transferred to the Complainant.
Mark Partridge
Sole Panelist
Dated: December 23, 2003
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