WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Eveready Battery Company, Inc. v. Oscar Haynes
Case No. D2003-1005
1. The Parties
The Complainant is Eveready Battery Company, Inc., Saint Louis, Missouri, United States of America, represented by Blackwell Sanders Peper Martin, United States of America.
The Respondent is Oscar Haynes, Washington, District of Columbia, United States of America.
2. The Domain Name and Registrar
The disputed domain name, , is registered with Go Daddy Software.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on December 18, 2003. On December 22, 2003, the Center transmitted by email to Go Daddy Software a request for registrar verification in connection with the domain name at issue. On December 22, 2003, Go Daddy Software 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. 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 December 29, 2003. In accordance with the Rules, paragraph 5(a), the due date for Response was January 18, 2004. The Respondent did not submit any response. Accordingly, the Center notified the Respondent�s default on January 20, 2004.
The Center appointed Andrew Bridges as the sole panelist in this matter on February 3, 2004. 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.
Owing to extraordinary circumstances, the Panel obtained an extension of the time for decision until February 27, 2004.
4. Factual Background
Because the Respondent has defaulted in this proceeding, the Panel treats as true and uncontested the following facts:
A. The Complainant is one of the world�s largest manufacturers of dry cell batteries and flashlights, selling batteries and related products in virtually every market throughout the world. The Complainant owns many trademarks with the word ENERGIZER, including U.S. Registration no. 1,502,902 for the word mark ENERGIZER as applied to batteries.
B. The Complainant or a predecessor in interest has continuously used the mark ENERGIZER for batteries since its first use in 1981.
C. The Respondent registered the domain name years after the Complainant or a predecessor in interest acquired trademark rights in ENERGIZER for batteries.
D. The Respondent has not used, and does not use, ENERGIZER BATTERIES or as a trademark, service mark, or trade name, and the Respondent has not been commonly known by that name.
E. The Respondent does not make any non-commercial or fair use of ENERGIZER BATTERIES.
F. The Respondent has not been authorized by Complainant to use the domain name or any similar name.
G. The Respondent�s domain name is "parked" with the registrar GoD, which offers registrar and other Web services at a default web site associated with the domain name. That default web site refers to the domain name only by stating:
"www. coming soon!
This page is parked FREE at GoD"
H. The Respondent is a passive holder of the domain name.
I. The Complainant twice sent communications to the Respondent regarding the Respondent�s registration and use of the disputed domain name. The Respondent failed to respond to those communications.
J. The Respondent has failed to respond to the Complaint in this proceeding.
5. Parties� Contentions
A. Complainant
The Complainant has asserted the facts shown in subparagraphs A through I of paragraph 4, as well as other facts not necessary to the decision.
The Complainant contends that is identical or confusingly similar to its ENERGIZER trademark and other trademarks for batteries and other products. It further contends that the Respondent�s addition of "batteries" and the top-level domain ".net" to the ENERGIZER brand fails to distinguish the domain name from the ENERGIZER brand. It further argues that there is a likelihood of confusion arising from the Respondent�s registration and use of the disputed domain name.
The Complainant argues that the Respondent has no legitimate rights or interest in the domain name in that he is not authorized to use the domain name, he does not use it in any business and is not known by the name, he merely parks the domain name with another company, and he does not engage in non-commercial or fair use of the name.
The Complainant argues that the Respondent registered and used the disputed domain name after the Complainant or its predecessor acquired rights in the ENERGIZER mark for batteries, after the Complainant registered the mark and related marks for batteries, and after the mark became famous. The Complainant also argues that the Respondent registered and is using the domain name in bad faith on the basis of (A) his presumed knowledge of the ENERGIZER trademark for batteries at the time of his registration and use of the domain name; (B) his "parking" and passive holding of the domain name; and (C) his failure to respond to communications from the Complainant�s counsel.
The Complainant has requested transfer of the domain name.
B. Respondent
The Respondent did not reply to the Complainant�s contentions and is in default.
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, "[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."
Where a party fails to present evidence in its control, the Panel may draw adverse inferences regarding those facts.
In a proceeding by default, this Panel studies the Complaint to determine whether the Complainant has established a prima facie case for relief on the undisputed facts. In doing so, the Panel reviews the Complaint to determine (1) whether the facts, evidence, and argument adequately support the requested relief and (2) whether there is any substantial reason, intrinsic or extrinsic to the Complaint, to call into question the facts and evidence presented by the Complainant.
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.
A. Identical or Confusingly Similar
The Panel concludes that the Complainant has established that the domain name is either identical or confusingly similar to its brand ENERGIZER for batteries. The Panel concludes that neither the addition of the word "batteries" to a trademark that is registered for batteries nor the addition of a top-level domain sufficiently distinguishes the domain name from the Complainant�s brand. The Panel decides this matter solely on the basis of the ENERGIZER mark with respect to batteries and does not need to address other brands of the Complainant.
B. Rights or Legitimate Interests
The Panel concludes, on the basis of a prima facie showing by Complainant, that the Respondent lacks any rights or legitimate interest in the domain name. The domain name is not in use as the domain name of an active web site. The record suggests that the Respondent�s domain name has been parked for over two years. Without determining that any particular length of time is dispositive on the issue, the Panel finds that the Respondent is a passive holder of the domain name. There is no indication that the Respondent is known by the domain name. Finally, the domain name is not used for a non-commercial or fair-use purpose.
C. Registered and Used in Bad Faith
The Panel concludes, on the basis of a prima facie showing by Complainant, that the Respondent has registered and used the domain name in bad faith. The Respondent has registered and used a domain name that is identical or confusingly similar to a famous mark, has placed the domain name out of reach of Complainant by parking the domain name as a passive holder, and has failed to respond to the Complainant�s communications, and in default in this proceeding.
7. Decision
For the foregoing reasons, in accordance with Paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name, , be transferred to the Complainant.
Andrew Bridges
Sole Panelist
Dated: February 27, 2004
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