Keith &
Suzanne Howard d/b/a RentsInMaine.com v. America's Internet, Inc.
Claim Number: FA0107000098063
PARTIES
The Complainant is Keith & Suzanne Howard d/b/a RentsInMaine.com, Belfast, ME (“Complainant”). The Respondent is America's Internet, Inc., Auburn, ME (“Respondent”) Todd Trull.
REGISTRAR AND
DISPUTED DOMAIN NAME
The domain name at issue is <forrentinme.com>, registered with Internet Domain Registrars.
PANEL
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge, has no known conflict in serving as Panelist in this proceeding.
Hon. James A. Carmody, as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum (“the Forum”) electronically on July 13, 2001; the Forum received a hard copy of the Complaint on July 13, 2001.
On July 13, 2001, Internet Domain Registrars confirmed by e-mail to the Forum that the domain name <forrentinme.com> is registered with Internet Domain Registrars and that the Respondent is the current registrant of the name. Internet Domain Registrars has verified that Respondent is bound by the Internet Domain Registrars 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 July 20, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of August 9, 2001 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@forrentinme.com by e-mail.
A response was received on August 14, 2001, and determined to be complete. The Response to the Complaint was due on or before August 9, 2001 but was not received until five days later, with an acknowledgement that the Notification of Complaint and Commencement of Administrative Proceeding had been received by Respondent on July 20, 2001. In the Response, there is no request for consideration of a late filed pleading or justification for the late Response. Accordingly, this panel will not consider the Response for any purpose in arriving at its decision.
On August 16, 2001, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed the Hon. James A. Carmody as Panelist.
RELIEF SOUGHT
The Complainant requests that the domain name be transferred from Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
Complainant alleges that it is the owner of the service mark “RentsInMaine.com” and that the domain name at issue, <forrentinme.com>, is nearly identical or confusingly similar to Complainant’s service mark. Respondent, Complainant says, has no rights or legitimate interests in respect of the domain name at issue because it is actively utilizing a website associated with the domain name at issue to compete with Complainant’s business. Because Respondent is using the domain name at issue to misleadingly divert consumers and to confuse them as to the origin and sponsorship of the website associated with the domain name at issue, Complainant alleges bad faith registration and use of <forrentinme.com>
B. Respondent
Respondent did not timely submit a Response in this proceeding and, thus, its contentions are not considered.
FINDINGS
Complainant alleges one year’s common law use of the RentsInMaine.com service mark. Although Complainant attaches to the Complaint some form of commercial service mark acknowledgement from a business entity in Arizona, dated three months prior to the commencement of these proceedings, the mark is not otherwise dignified, noted or protected with a state or federal registration. Complainant urges that the differences between its mark and the domain name at issue (the addition of the “for” and the “s” in “rents” and the abbreviation of the State of Maine in the domain name) are trivial and that there has been some actual confusion between the respective websites. Also there appears to be some evidence that Respondent was aware of Complainant’s operations and website at rentsinmaine.com. I find that there is not enough similarity between the domain name at issue and Complainant’s service mark for the general public to be confused as to the source of sponsorship of the website associated with the domain name at issue. Further, Complainant’s mark is a very weak, descriptive service mark, having only been used for a year or less at the time of the registration of the domain name at issue. A secondary meaning in the mark is not alleged and no proper legal registration is alleged. The facts that Respondent was aware of Complainant and may have had communications with Complainant regarding placing an ad on the rentsinmaine.com site do not rise to the level of bad faith, particularly as defined within the ambit of the Policy, as defined below.
DISCUSSION
Paragraph 15(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (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.”
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:
(1) the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(2) the 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.
Identical and/or
Confusingly Similar
Complainant does not allege any secondary meaning associated with its year old unregistered service mark which is, in any event, sufficiently distinct from the domain name at issue. The disputed domain name is merely descriptive of the services offered, and therefore Complainant’s use is not exclusive. See CRS Tech. Corp. v. Condenet, Inc., FA 93547 (Nat. Arb. Forum Mar. 28, 2000) (finding that “concierge is not so associated with just one source that only that source could claim a legitimate use of the mark in connection with a website”); see also Car Toys, Inc. v. Informa Unlimited, Inc., FA 93682 (Nat. Arb. Forum Mar. 20, 2000) (finding that Respondent has rights and legitimate interests in the domain name where Complainant submitted insufficient evidence to establish either fame or strong secondary meaning in the mark such that consumers are likely to associate <cartoys.net> with the CAR TOYS mark).
Accordingly, Paragraph 4(a)(1) of the Policy is not satisfied by Complainant.
Complainant having failed to demonstrate that its service mark is either presently protectable or identical or confusingly similar to the domain name at issue, it is not necessary for this panelist to make findings as to whether Respondent has rights or legitimate interests in respect of the domain name at issue or whether Respondent acted in bad faith.
DECISION
It is directed that the domain name at issue, <forrentinme.com>, not be transferred from Respondent to Complainant.
Hon. James A. Carmody, Panelist
Dated: August 21, 2001
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page