Surveillance Data Inc. v. Raymond Gendron
Claim Number: FA0807001217146
Complainant is A Surveillance Data Inc. (“Complainant”), represented by Glenn
Connery,
REGISTRAR AND DISPUTED DOMAIN
NAME
The Domain Name at issue is <azma.com> (the “Domain Name”), registered with Network Solutions, Inc.
The undersigned certify that each has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding:
Beatrice Onica Jarka and Hon. Nelson A. Diaz as Panelists, and Christopher Gibson as the Panel’s Chairmen.
Complainant submitted a Complaint to the National Arbitration Forum electronically on July 24, 2008; the National Arbitration Forum received a hard copy of the Complaint on July 31, 2008.
On July 25, 2008, Network Solutions, Inc. confirmed by e-mail to the National Arbitration Forum that the <azma.com> Domain Name is registered with Network Solutions, Inc. and that Respondent is the current registrant of the name. Network Solutions, Inc. has verified that Respondent is bound by the Network Solutions, Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On August
5, 2008, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
August 25, 2008
by which Respondent could file a response to the Complaint, was transmitted to
Respondent via e-mail, post and fax, to all entities and persons listed on
Respondent's registration as technical, administrative and billing contacts,
and to postmaster@azma.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On September 9, 2008 pursuant to Complainant's request to have the dispute decided by a three-member Panel, the National Arbitration Forum appointed Beatrice Onica Jarka and Hon. Nelson A. Diaz as Panelists, and Christopher Gibson as the Panel’s Chairmen.
On September 23, 2008, the Panel requested that the
Complainant provide additional evidence (i) to demonstrate the
rights of the Complainant in the AZMA.COM name and mark; and (ii) to show that
Respondent, as an employee of the Complainant, registered the disputed Domain Name
as part of his job. The Complainant
responded with additional, helpful documentary evidence on September 25, 2008.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the Domain Name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. The <azma.com> Domain Name registered by the Respondent is the Complainant’s property and is identical to Complainant’s AZMA.COM mark.
2. Respondent does not have any rights or legitimate interests in the Domain name. The Respondent registered the Domain Name as a function of Respondent’s job when employed by the Complainant.
3. Respondent registered and used the Domain Name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
According to WHOIS look-up records, the Respondent is the registrant of the Domain Name. The Complainant has used the Domain Name for its website since at least September 2002. The Complainant filed an application with the U.S. Patent and Trademark Office (“PTO”) for the mark AZMA.COM on July 14, 2008.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a Domain Name should be cancelled or transferred:
(1) the Domain Name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the Domain Name; and
(3) the Domain Name has been registered and is being used in bad faith.
The Complainant has satisfied the Panel that it has acquired
trademark rights in the AZMA.COM mark through use of the Domain Name and this
mark on its website. The site provides
information and an email alert service (e.g., with air quality levels) for
asthma suffers across the
The Panel determines that Respondent’s <azma.com> Domain Name is identical to the Complainant’s mark pursuant to Policy ¶
4(a)(i). See
The Complainant has satisfied the Panel that Respondent has no rights or legitimate interests in the Domain Name. The Complainant has provided documentary evidence to show that (i) the Respondent was employed by the Complainant between August 8, 2000 and May 1, 2008, and (ii) the Respondent registered the Domain Name as a function of his full-time employment with the Complainant. The Respondent registered the Domain Name in a personal account using a personal email address rather than in a Network Solution’s corporate account using the Complainant’s corporate email address. The technical contact for the Domain Name is listed as another employee of the Complainant. There is no evidence whatsoever that the Respondent has any rights or interests in the Domain Name, particularly as it has been used to link to the Complainant’s website. See Savino Del Bene Inc. v. Gennari, D2000-1133 (WIPO Dec. 12, 2000) (finding that a former employee does not acquire rights or legitimate interests in a Domain Name identical to the former employer's trademark).
All of the evidence submitted indicates that the Respondent, as an employee of the Complainant, was fully aware of the Complainant and of the Complainant’s intention to develop and use the AZMA.COM trademark when the Respondent registered the Domain Name in his own name and not in the name of his employer. Although registered in the Respondent’s own name, the Domain Name has been used exclusively to link to, and to brand, the Complainant’s site. Respondent’s continuing possession of the Domain Name and failure to transfer it to the Complainant in the face of these undisputed facts is in bad faith. See Savino Del Bene Inc. v. Gennari, D2000-1133 (WIPO Dec. 12, 2000) ("Respondent's registration of the company name of his former employer as a Domain Name is an act of bad faith."); see also Arab Bank for Inv. & Foreign Trade v. Akkou, D2000-1399 (WIPO Dec. 19, 2000) (finding bad faith registration and use where the respondent was formerly employed by the complainant, was fully aware of the name of her employer, and made no use of the infringing Domain Name).
The Panel concludes that the Domain Name was registered and is being used in bad faith.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <azma.com> Domain Name be TRANSFERRED from Respondent to Complainant.
Beatrice Onica Jarka and Hon. Nelson A. Diaz, Panelists
Christopher Gibson, Chair
Dated: October 16, 2008
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