Cedar Trade Associates, Inc. v Greg Ricks

THE NATIONAL ARBITRATION FORUM

PO BOX 50191

MINNEAPOLIS, MINNESOTA 5405 USA

Cedar Trade Associates, Inc.,
dba BuyPC.com
1573 Alvarado Street
San Leandro, CA 94577,

COMPLAINANT

vs.

Gregg Ricks
26 Center Avenue
Sulphur, LA 70633,

RESPONDENT

DECISION
FILE NO.: FA0002000093633

The above entitled matter came on for an administrative hearing on February 24, 2000 before the undersigned arbitrator on the Complaint of Cedar Trade Associates, Inc. ("Cedar" or "Complainant"), represented by Gerald J. Zanzinger, Esq., 1400 Fashion Island Blvd., Suite 311, San Mateo, California 94404, against Greg Ricks, 26 Center Avenue, Sulphur, Louisiana 70663 ("Ricks" or "Respondent"), appearing pro se. Upon the written submitted record including the Complaint, the Response to Complaint and Complainant’s Rebuttal to Respondent’s Reply to Complaint, the following DECISION is rendered:

PROCEDURAL FINDINGS

Domain Name: BuyPC.com

Domain Name Registrar: Register.com

Domain Name Registrant: Greg Ricks

Date of Domain Name Registration: November 11, 1999

Date Complaint Filed: February 9, 2000

Date Response to Complaint Filed: February 9, 2000

After reviewing the complaint, and determining it to be in administrative compliance, the National Arbitration Forum ("Forum") forwarded the Complaint to the Respondent on February 16, 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 Register.com that the administrative proceeding had commenced. The Complaint, the Response and Complainant’s Rebuttal to Respondent’s Reply to Complaint were docketed and forwarded to the undersigned arbitrator for decision.

FINDINGS OF FACT

1. Neither the complainant nor the respondent contest the jurisdiction of the Forum or the undersigned arbitrator to resolve this controversy.

2. Cedar has common law rights in the mark "BuyPC.com" and has used it as a trade name for the resale of personal computers and peripherals in the state of California at least since January 1, 1996.

3. Respondent does not allege that BuyPC.com has been used to identify its goods or services other than in connection with a web page.

4. Cedar initially registered BuyPC.com with Network Solutions in 1996, and that registration lapsed due to non-payment of registration fees when due in the summer of 1999. Subsequently, Ricks obtained a new registration of BuyPC.com on November 11, 1999.

5. Approximately two months following Ricks registration of BuyPC.com, he received a telephone call requesting that he voluntarily transfer this domain name to Cedar. Ricks did not do so and listed BuyPC.com as a domain name for sale with GreatDomains.com on a "Make Offer" basis on or about January 26, 2000.

6. Complainant has invested considerable time and effort in establishing an association between BuyPC.com and its goods and services over approximately four years. Respondent does not claim to have invested time and effort and expense beyond the establishment of a web page reflecting the domain name BuyPC.com.

7. In light of the fact that respondent registered the domain name BuyPC.com for sale with GreatDomains.com very shortly after registering the name, I find that such registration is in bad faith and that respondent has no rights or legitimate interest with respect to said domain name.

CONCLUSION

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:

1. The domain name "BuyPC.com", registered by respondent on November 11, 1999 with Register.com is identical to the common law trademark of complainant who formerly maintained the domain name and who lost such domain name only through a lapse in payment of registration fees in the summer of 1999.

2. Respondent does not have rights or legitimate interests in respect of the domain name BuyPC.com because he is not making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain, to misleadingly divert customers or to tarnish the trademark or service mark at issue.

3. The domain name should be considered as having been registered and is being used in bad faith by Respondent because Respondent acquired the domain name primarily for the purpose of selling, renting or otherwise transferring the name registration to the complainant or a third-party or to a competitor of that complainant for a valuable consideration in excess of Respondent’s documented out-of-pocket costs directly related to the domain name.

DECISION

Based upon the above findings and conclusions, and pursuant to Rule 4(i) of the ICANN’s Rules for Uniform Domain Name Dispute Resolution Policy and the National Arbitration Forum’s Supplemental Rules to ICANN’s Uniform Domain Resolution Policy, it is decided as follows:

THE UNDERSIGNED DIRECTS THAT THE DOMAIN NAME "BuyPC.com" REGISTERED BY RESPONDENT GREGG RICKS BE TRANSFERRED TO COMPLAINANT CEDAR TRADE ASSOCIATES, INC.

Signed this 25th day of February, 2000 by Judge James A. Carmody (Retired), arbitrator.