Cincinnati Bell, Inc. v. Lorna Kang

WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Cincinnati Bell Inc.

v. Lorna Kang

Case No. D2002-0243

1. The Parties

Complainant is Cincinnati Bell Inc., represented by Nicole D. Vickroy, Esquire, Frost Brown Todd LLC, 2200 PNC Center, 201 East Fifth Street, Cincinnati, Ohio 45202, United States of America, hereinafter the "Complainant".

Respondent is Lorna Kang, P.O. Box 21, Telok Intan, Perak, 36009, Malaysia, hereinafter the "Respondent".

2. Domain Name and Registrar

The domain name in dispute is <cincinnatibellwireless.com>.

The registrar for the disputed domain name is iholdings d/b/a DotRegistrar.com, 13205 SW 137th Avenue, Suite #133, Miami, Florida 33186, United States of America.

3. Procedural History

The essential procedural history of the administrative proceeding is as follows:

(a) Complainant initiated the proceeding by the filing of a complaint, received

by the WIPO Arbitration and Mediation Center ("WIPO") on March 13, 2002,

by electronic mail and hard copy. On March 19, 2002, WIPO sent an

Acknowledgement of Receipt of the Complaint to the Complainant.

(b) On March 20, 2002, WIPO transmitted a Request for Registrar Verification

to the registrar, with the Registrar’s Response received by WIPO March 21,

confirming that the domain name at issue was registered through iholdings d/b/a

DotRegistrar.com, 13205 SW 137th Avenue, Suite #133,

Miami, Florida 33186, United States of America.

(c) On March 27, 2002, WIPO transmitted Notification of the Complaint and Commencement

of the Administrative Proceeding in Case No. D2002-0243

to the Respondent, after having satisfied itself that the Complainant had

complied with all formal requirements pursuant to the Uniform Domain Name Dispute

Resolution Policy, adopted by the Internet Corporation for Assigned Names and

Numbers (ICANN) on August 26, 1999 ("the Policy"), the Rules

for the Policy approved by ICANN on October 24, 1999 ("the Rules"),

and the WIPO Supplemental Rules for the Policy ("the Supplemental Rules").

(d) No Response was submitted by the Respondent. Accordingly, WIPO issued a

Notification of Respondent Default on April 17, 2002.

(e) In view of the Complainant’s designation of a single panelist, WIPO invited

Mr. Peter Nitter to serve as a panelist. Having received his Statement

of Acceptance and Declaration of Impartiality and Independence, WIPO formally

appointed him as Sole Panelist, and transmitted the case file to him. The parties

were notified of the Appointment of Administrative Panel on May 15, 2002.

(f) The Administrative Panel finds that it is properly constituted and appointed

in accordance with the Rules and the Supplemental Rules. The Administrative

Panel shall issue its Decision based on the complaint, the Policy, the Rules

and the Supplemental Rules. The proceedings have been conducted in English.

4. Factual Background

After the Complainant’s assertions, undisputed by Respondent because of its default, and supported by the documents enclosed as annexes to the complaint, the Panel finds the following:

Complainant is the owner of several trade marks containing the designation CINCINNATI BELL, including the trade mark CINCINNATI BELL WIRELESS, which due to extensive use and advertising is well known in the United States as identifying Complainant as the provider of a broad range of telecommunications goods and services.

Respondent has registered the domain name <cincinnatibellwireless.com>. Said domain name was previously linked to commercial web sites advertising wireless telecommunications goods and services.

5. Parties’ Contentions

5.1 Complainant

The Complainant asserts that:

The domain name at issue is identical to Complainant’s trade mark CINCINNATI BELL WIRELESS.

The Respondent has no right or legitimate interest in respect of the domain name at issue.

Respondent has no legitimate or fair interest in, or other rights to the domain name at issue or the corresponding trade mark. Nor has Respondent prior to any notice of this dispute used said domain name in connection with a bona fide offering of goods or services.

The domain name was and is registered and used in bad faith.

Respondent had to have been aware of Complainant’s trade mark when registering

the domain name at issue. The contested domain name was registered with

the intention of attracting Internet users to Respondent’s commercial web

site by creating a likelihood of confusion with Complainant’s trade mark.

The Complainant requests the Administrative Panel issue a decision that

the contested domain name must be transferred to the Complainant.

5.2 Respondent

The Respondent has not submitted a response, and is thus in default. Respondent

has neither made any submissions whatsoever after the Notification of Respondent

Default.

6. Discussion and Findings

Paragraph 4(a) of the Policy lists three tests, which a complainant must

satisfy in order to succeed. The Complainant must satisfy that:

(i) the domain name is identical or confusingly similar to a trademark or service

mark in which the complainant has rights; and

(ii) the respondent has no rights or legitimate interests in respect of such

domain name; and

(iii) the domain name has been registered in bad faith and is being used in

bad faith.

6.1 Identical or confusingly similar to a trademark or a service mark

The Panel finds that the domain name at issue is identical to Complainant’s

registered trade mark CINCINNATI BELL WIRELESS.

6.2 Rights or legitimate interest in the domain name

The Panel has considered the allegation by the Complainant as to the lack

of rights or legitimate interests of the Respondent in respect of the domain

name at issue, including the Complainant’s contention about the lack of

any legitimate intellectual property or bona fide right of the Respondent

to the contested domain name. As a result of default, these allegations

have not been contested by the Respondent.

The Panel has visited the <cincinnatibellwireless.com> web site of

the Respondent in order to investigate whether there could be found any

evidence as to Respondents rights or the legitimacy of the interest of the

Respondent in the contested domain name. The Panel did however not find

any such evidence.

Thus, the Panel finds that the Respondent has no rights or legitimate interest

in the contested domain name.

6.3 Registration and use in bad faith

Respondent has not invoked any circumstances, which could invalidate Complainant’s

allegations with regard to the Respondent’s registration and use of the

domain name in bad faith.

Complainant’s trade mark is well known, and is particularly distinctive

due to its length and complexity. Thus, the Panel finds Respondent highly

unlikely to have registered the domain name at issue without being familiar

with Complainant’s trade mark.

Respondent has linked the domain name at issue to commercial web sites

advertising wireless telecommunications goods and services in direct competition

to those offered by Complainant.

Respondent’s registration and continuous use of the contested domain name

must therefore be deemed as an intentional attempt to divert Internet users

to its web site, taking advantage of the likelihood of confusion with Complainant’s

mark as to the source, sponsorship, affiliation, or endorsement of this

web site.

Pursuant to Paragraph 4(b) of the Policy, such actions constitute evidence

of registration and use of a domain name in bad faith.

The Panel therefore finds that the Respondent has registered and used the

domain name at issue in bad faith.

7. Decision

The Panel has found that the domain name <cincinnatibellwireless.com>

is identical to a trade mark held by the Complainant, and that the Respondent

has no rights to or legitimate interest in said domain name. The Panel has

further found that the domain name has been registered in bad faith, and

that it has been and is being used in bad faith.

Therefore, pursuant to Paragraphs 4(i) of the Policy and 15 of the Rules,

the Panel decides to request that the domain name in dispute be transferred

to the Complainant.

Peter G. Nitter

Sole Panelist

Dated: May 29, 2002

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