Mrs. America Productions, Inc. v E.T. Corp.

Mrs. America Productions, Inc.
COMPLAINANT,

vs.

E.T. Corp.
RESPONDENT.

PANEL DECISION
Forum File No: FA0003000094377

This is a domain name dispute. Administrative Proceedings were conducted pursuant to the ICANN Uniform Domain Name Dispute Resolution Policy (The Policy). James A. Crary was selected to serve as the sole administrative panelist.

PROCEDURAL FINDINGS

Domain Name: mrsamerica.net
Domain Name Registrar: Alabanza d/b/a BulkRegister.com
Date of Domain Name Registration: December 11, 1999
Date Administrative Proceedings Commenced: March 31, 2000
Date Response Due: April 20, 2000 (No Response Filed)
Relief requested by Complainant: Transfer of mrsamerica.net to Complainant.

THE COMPLAINT

The Complainant is the owner of a Unites States trademark registration number 2,130,222 for MRS. AMERICA^®. The service mark is used in connection with the promotion of sales of goods and services to others by conducting beauty pageants. The MRS. AMERICA^®was first used by Complainant in 1976.

It was maintained that respondent registered the domain name mrsamerica.com, that the domain was identical or confusingly similar to its mark, and that the domain name was likely to cause confusion, mistake or deception among third parties seeking goods and services associated with Complainant’s name and mark.

Virtually all of the allegations were based on information and belief. There was no recitation of contact between Complainant and Respondent or information to indicate either efforts by the Complainant or Respondent to transfer the name.

It was asserted that the Respondent had no rights or legitimate interest in the domain name. Respondents were alleged to have registered the domain name primarily for the purpose of selling, renting or otherwise transferring the domain name for valuable consideration, "upon information and belief." It was further asserted that Respondent effectively prevented the Complainant from reflecting its federally registered service mark in a corresponding domain name.

The Complainant requested an order transferring the domain name mrsamerica.com to Complainant.

DISCUSSION

The Panel was satisfied the Forum took all steps reasonably necessary to notify the Respondent of the filing of the complaint and initiation of these proceedings, and that the failure of the Respondent to furnish a reply is not due to any omission by the Forum. There complaint was served by e-mail, fax and regular mail on the party designated as administrative contact for the Respondent. It was concluded Respondent had notice of the complaint and commencement of proceedings.

Section 4(a) of the Policy requires that Complainant prove each of three elements:

(1) Respondent’s domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights.

(2) Respondent has no rights or legitimate interests in respect to the domain name.

(3) That the Respondent’s domain name has been registered and is being used in bad faith.

The ICANN Rules for Uniform Domain Name Dispute Resolution Policy Rules (Rules) at 5.(e) and 14(a) provide that in the absence of exceptional circumstances where Respondent defaults in answering the compliant, the Panel shall proceed to decision on the complaint. No exceptional circumstances were found to exists in this case.

Rule 14(b) provides that where a party in the absence of exceptional circumstances fails to comply with any provisions or requirements under these Rules…the Panel shall draw such inferences there from as it considers appropriate.

Respondent has failed to answer to the complaint. The Respondent has not presented and the record does not contain a good faith rational for the registration of the disputed domain name.

Complainant has met the burden of proving that Respondent is the registrant of a domain name that is, if not identical, certainly confusingly similar to the trademark which the Complainant has rights. The domain name simply omits the period (.) from "Mrs." Thus the Complainant has established the first of the three elements necessary to obtain relief.

There was no evidence on record that would indicate the Respondent had any right or legitimate interest with respect to the domain name mrs.america.net other than it has registered this domain name. If mere registration of the domain name were sufficient to establish rights or legitimate interests for the purposes of paragraph 4(a)(ii) of the Policy, then all registrants would have such rights or interests, and no Complainant could succeed on a claim of abusive registration. Construing the Policy so as to avoid an illogical result, the Panel concluded that mere registration could not establish rights or legitimate interests in the disputed domain name so as to avoid the application of paragraph 4(a)(ii) of the Policy.

The Respondent furnished no evidence of any legitimate use or preparation to use the disputed domain name, nor is there evidence on record in the proceeding of legitimate use or preparation of use by the Respondent. The Panel concluded that the Respondent had no right or legitimate interest in the disputed domain name. Thus, the Complainant established the second element necessary to prevail on its claim.

The Policy at 4(b) sets forth certain circumstances "in particular but without limitation" be evidence of bad faith. As to those circumstances the Complainant simply alleges that those circumstances occurred "on information and belief", but then goes on to rightly point out that the registration of the domain name by the Respondent effectively prevented the Complainant from reflecting its federally registered mark in a corresponding domain name. There is no evidence that a website was established, that the domain name was offered for sale or that the Respondent engaged in a pattern of selling domain names at a profit in violation of the Policy.

It is noted, however, that the list of "bad faith" circumstances of registration and use in paragraph 4(b) of the Policy is illustrative, not exclusive. In the context of this case, the Panel determined that the Respondent’s registration of the domain name mrsamerica.net corresponding to Complainant’s trademark was an act of bad faith with respect to Complainant’s interests, since the registration prevented the Complainant from using its mark in a corresponding domain name, even thought no pattern of preclusive registrations by the Respondent had been shown.

The Complainant’s trademark has an exclusive connection to a commercial product, and the name has limited potential utility as a common purveyor of information. This fact weighed strongly on the side of the Complainant. A high preponderance of the Respondent’s potential uses of the domain name would infringe upon Complainant’s rights as a trademark holder and the Respondent has made no showing that it might intend to use the domain name for a legitimate purpose. It was concluded the Complainant had established the third and final element necessary to the granting of relief.

CONCLUSION AND ORDER
Based on the foregoing, it was concluded by the Panel that Respondent engaged in abusive registration of the domain name mrsamerica.net within the meaning of the Policy. The Panel therefore orders that the domain name mrsamerica.net be transferred to the Complainant.

Dated: May 15, 2000 James Alan Crary