|Kläger||EDB 4Tel ASA|
WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
EDB 4Tel ASA vs. 4Tel Technology
Case No D2000-0734
Complainant is EDB 4Tel ASA, whose address is P.O. Box 6798, St Olavs Plass, 0130 Oslo, Norway. Complainant is represented by Kristian Ambjoerndalen, Attorney at Law, Oslo, Norway.
Respondent is 4Tel Technology the address of which is 180 Ruby Drive, Lakeport, CA 94953, United States. According to Complainant, the Administrative Contact for Registrant and also the owner of the company is Michael Boyd, MCI Worldcom, Technical Architect, 2600 Napa Valley Corp Drive, Napa, CA 94558, United States. The address from WHOIS as submitted by Complainant is the same as the one mentioned for 4Tel Technology.
2. The Domain Name and Registrar
The domain name at issue is "4tel.com" which is registered with Network Solutions, Inc., 505 Huntmar Park Drive, Herndon, Virginia, United States.
3. Procedural History
A Complaint was received by the World Intellectual Property Organization Arbitration and Mediation Center (the Center) in e-mail form on July 5, 2000, and in hard copy on August 21, with an amendment on August 24, in which Complainant agreed to accept the Mutual Jurisdiction to be that of Respondent.
On July 5, 2000, a message was received by the Center from "mike.boyd email@example.com"-e-mail 707 752-2002 voicemail/fax 707 262 5890 home "www.lanteg.com" stating: "I sold it to 4tel I agree its there website!!"
Having transmitted a Registrar Verification Request to Network Solutions on July 13, 2000, the Center received a Registrar Verification on July 16.
The Verification indicates
a) that Network Solutions is in receipt of the Complaint sent to it by Complainant
b) that Network Solutions is in fact the Registrar of the domain name at issue
c) that current Registrant is "4tel Technology (4TEL2-DOM) 180 Ruby Dr., Lakeport, CA 94953,US"
d) that, in respect of the domain name at issue ("4tel.com") the Administrative Contact is "Boyd, Michael (MB21767) "miboyd@SHL.COM" 707-262-5890" and that Technical Contact, Zone Contact is "Hostmaster (HO237-ORG) hostmaster@VALUEWEB.NET 888-934-6788, Fax 954-428-7977". No indication is given under "Billing Contact"
e) that Network Solutions 4.0 Service Agreement is in effect, and
f) that the domain name registration "4tel.com" is in "active" status.
Having verified, on August 28 that the Complaint satisfied the formal requirements of the Policy and the Rules, a Notification of Complaint was transmitted to Respondent on August 28, 2000.
Having received no Response to the Complaint, the Center, on September 20, 2000, transmitted a Default Notification which was sent to Respondents e-mail address and was copied to Complainant.
Having invited Mr. Henry Olsson to be the Sole Panelist in this case and having received on October 2, 2000, Mr. Olssons Statement of Acceptance and Declaration of Impartiality and Independence the Center appointed the same day Mr. Olsson to be the sole Panelist in the case. The Projected Decision Date was set as October 16, 2000.
The Sole Panelist finds that the Administrative Panel was properly constituted and appointed in accordance with the Rules and the WIPO Supplemental Rules.
4. Factual Background
Few details are available in this case concerning the activities of any of the Parties. According to Complainant the case concerns primarily an alleged transfer of the domain name at issue; the details of the Complaint in this respect are elaborated upon below.
5. Parties Contentions
Complainant alleges that it has acquired the domain name at issue from Respondent for an amount of USD6000. In this context, Complainant refers to Case D2000-0026 Teradyne. Inc vs. Respondent.
According to Complainant, Respondent has admitted that it had sold the domain name to Complainant for the sum mentioned. To support this, Complainant invokes a copy of an e-mail of September 20, 2000, where Mr. Michael Boyd confirms the sale of the domain name and a copy of a bank transfer of September 24, 2000, according to which an amount of USD 6000 was transferred to Mr. Boyd.
On the basis of these allegations, Complainant alleges that Respondent has no rights or legitimate interests in respect of the domain name "4tel.com" and that Complainant should be considered as the rightful owner of the domain name and should be registered as such by the Registrar. Complainant requests a decision by the Administrative Panel to the effect that the domain name at issue be transferred to Complainant.
As indicated above, Complainant has agreed to submit, in accordance with Paragraph 3.b.(xiii) of the Rules, to the jurisdiction applicable to the address of Respondent.
Respondent has not submitted any Response and is in Default.
6. Discussions and Findings
Rule 15 of the Rules prescribes that the Panel shall decide a complaint on the basis of the statements made and documents submitted and in accordance with the Policy, these Rules and any rules and principles that it deems applicable.
In the case of Default by Party, Rule 14 prescribes that if a Party, in the absence of exceptional circumstances, does not comply with provision of, or a requirement under, these Rules, the Panel shall draw such inferences therefrom as it considers appropriate. In this case, Respondent has not submitted any Response and consequently, despite the opportunity given, has not contested any of the contentions by Complainant. The Panel will therefore have to operate on the basis of the factual statements contained in the Complaint and the documents available to support the contentions.
Applies to this case, Paragraph 4(a) of the Policy directs that Complainant must prove each of the following:
a) that the domain name registered by Respondent is identical or confusingly similar to a trademark or a service mark in which in which Complainant has rights, and
b) that Respondent has no rights or legitimate interests in the domain name, and
c) that the domain name has been registered and is being used in bad faith.
The issue at hand in this dispute does not really concern a conflict between, on the one hand, a trademark or service mark and, on the other hand, a domain name but rather whether an acquisition of the domain name by Complainant has in fact taken place so that Complainant should also appear as the holder of the domain name registration in the files of the Registrar. As the legal basis under the Policy for such a transfer, Complainant has invoked that Respondent has no rights or legitimate interests in respect of the domain name.
In order for a Panel to decide on a transfer or a cancellation of a domain name under Paragraph 4(i) of the Policy Complainant has to assert and prove all the elements mentioned under a) to c) above. It is not enough to refer to only one of those. In this case, no allegations have been made and no arguments submitted concerning items a) on identity or confusing similarity between a mark and the domain name or c) on registration and use in bad faith.
Consequently, no sufficient basis exists for any decision in substance on the request by Complainant.
On the basis of the considerations referred to above, the Panel dismisses the Complaint.
Dated: October 5, 2000