Fishtech, Inc. v IFC Corporation & Richard Rossiter

P. O. Box 50191
Minneapolis, Minnesota 55405 USA
www.arbitration-forum.com

FISHTECH, INC.
BOX 6886
SAN RAFAEL, CA 94903,

COMPLAINANT,

vs.

RICHARD ROSSITER,
d/b/a IFC CORPORATION,
and IFC CORPORATION,

RESPONDENTS.

DECISION
Forum File No.: FAOOOIOO0092976

The above entitled matter came on for an administrative hearing on March 6, 2000, before the undersigned on the Complaint of Fishtech, Inc., hereafter "Complainant," against Richard Rossiter, d/b/a IFC Corporation, and IFC Corporation, hereafter "Respondents." Complainant was represented by David B. Himelstein, Esquire, P. 0. Box 28337, San Diego, CA 92198. There was no representation on behalf of Respondents. Upon the written submitted record, the following Decision is made-.

PROCEDURAL FINDINGS

Domain Name: fishtech.com
Domain Name Registrar: Network Solutions, Inc.
Domain Name Registrant- IFC Corporation
Date of Domain Name Registration-. May 31, 1996
Date Complaint Filed: January 27, 2000
Date of Commencement of Administrative Proceeding in Accordance with Rule 2(a)' and Rule 4(c): January 27, 2000
Due date for a Response: February 21, 2000. Respondents did submit an incomplete Response to the Complaint on January 31, 2000.

After reviewing the Complaint, and determining it to be in administrative compliance, the National Arbitration Forum (The Forum) forwarded the Complaint to the Respondents on January 27, 2000, in compliance with Rule 2(a), and the administrative proceeding was commenced pursuant to Rule 4(c). In compliance with Rule 4(d), The Forum immediately notified Network Solutions, Inc. (Network Solutions), the Internet Corporation for Assigned Names and NL.-mbers (ICANN), and the Complainant that the administrative proceeding had commenced.

On December 3, 1999, Respondent IFC Corporation registered the domain name "fishtech.com" with Network Solutions, the entity that is the Registrar of the domain name. On January 27, 2000, Network Solutions verified that Respondent is the Registrant for the domain name "fishtech.com," and that further, by registering its domain name with Network Solutions, Respondent agreed to resolve any dispute regarding its domain name through ICANN's Rules for Uniform Domain Name Dispute Resolution Policy, and the Uniform Domain Name Dispute Resolution Policy. The undersigned certifies that he has acted independently and has no known conflict of interest to serve as the Arbitrator in this proceeding. Having been duly selected, and being impartial, the undersigned makes the following findings and conclusions:

FINDINGS OF FACT

1 . The Complainant is the owner of the service mark "fishtech"-, and it also uses the domain name of "fishtech.com" for its portal Web site currently hosted by an entity called MindSpring and before MindSpring, hosted by a business called WebDev. The service mark and domain name are used extensively at the Web site, and are important to Complainant in promoting its business.

2. In the summer of 1996, Complainant contracted with Respondent Richard Rossiter, then doing business as WebDev, to have WebDev design, implement, and

Any reference to "Rule" or "Rules" are to ICANN's Rules for Uniform Domain Name Dispute Resolution Policy and Uniform Domain Name Dispute Resolution Policy, as supplemented by the National Arbitration Forum's Supplemental Rules to ICANN's Uniform Domain Resolution Policy. host a Web site for Complainant on WebDev's computer systems. Complainant requested the domain name "fishtech.com", and has been using that domain name and paying for it ever since. Respondent Rossiter registered the domain name to Respondent IFC Corporation, a name under which Respondent Rossiter did business, which is not a California corporation, nor registered as a foreign corporation in California to do business there.

3. Complainant, dissatisfied with Respondent Rossiter's service, contracted with MindSpring to host a new web site for Complainant in late 1999. Since December 1999, Complainant has had this new web site hosted by MindSpring, and still uses the domain name of "fishtech.com." However, Respondent IFC Corporation is listed as the registrant (owner) of the domain name noted herein instead of Complainant. Respondents have heretofore refused to transfer ownership 'L-o or communicate with Complainant, though a brief e-mail, which was not a complete response to the Complaint herein, from Respondent Rossiter to Michaelene Fredrickson of the National Arbitration Forum, dated January 31, 2000, now acknowledges Respondents have absolutely no interest in Claimant's domain name, and will do whatever needs to be done to correct this problem.

4. The domain name "fishtech.com" is identical to Complainant's name Fishtech, Inc., and to the common law service mark "fishtech," which has been used since 1982 as a service mark by Complainant and its predecessors.

5. Respondents have never used "fishtech" as a trade name, trademark, or service mark. The only connection Respondents have ever had with the name "fishtech" is as agents of Fishtech, Inc., when Respondent IFC was incorrectly stated to be the registrant without the permission or even knowledge of Fishtech, Inc.

6. Respondents registered the domain name "fishtech.com" in bad faith and have no rights or legitimate interests in respect to said domain name. Evidence of bad faith here was that Respondent Rossiter was hired to register fishtech.com for Fishtech, Inc., neither for his own benefit nor for the benefit of Respondent IFC Corporation. Respondent Rossiter was then acting as an agent for Fishtech, Inc. and had no authority to register the domain name in favor of one of Respondent Rossiter's own business names. Additional bad faith here was that Respondents never informed Fishtech, Inc. that Respondent IFC Corporation had been designated as the registrant for the domain name. Fishtech, Inc. did not learn about the designation until late in 1999, when the domain hosting was switched to MindSpring. Respondent Rossiter did not respond to telephone calls, e-mail messages, or letters. This continuing refusal to communicate is evidence of continuing bad faith.

7. Complainant's prayer for relief requests that the domain name "fishtech.com" be transferred from Respondents to Complainant, and that the domain name registrar, Network Solutions, Inc., be ordered to eliminate Respondent IFC Corporation from the registry and substitute in its place Fishtech, Inc.

CONCLUSIONS

1 . The domain name "fishtech.com," registered by Respondent IFC Corporation on May 31, 1996, with Network Solutions, Inc., is identical, or confusingly similar, to a trademark or service mark in which Complainant has rights, and to which Respondents have no rights or legitimate interests.

2. The domain name "fishtech.com" should be considered as having been registered and used in bad faith.

DECISION

Based upon the above findings and conclusions, and pursuant to Rule 4(i), it is decided:

The below-named Arbitrator directs that the domain name "fishtech.com," registered by Respondent IFC Corporation, be transferred to Complainant Fishtech, Inc.

DATED: March 10, 2000.

D. Frank Wilkins, Arbitrator