Freeman Capital Company v. OnScreen Business Communications, Inc

WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Freeman Capital Company v. ONScreen Business Communications

Case No. D2002-0448

1. The Parties

The parties are Freeman Capital Company, 1421 West Mockingbird Lane, Dallas, Texas 75247-4978, U.S.A.(Complainant) and ONScreen Business Communications, 203 Rio Circle, Decatur, GA 30030, United States of America. (Respondent).

2. The Domain Name and Registrar

The domain name in dispute ("the Domain Name") is <freemandecorating.com>. The Registrar is Network Solutions, Inc., 505 Huntmar Park Drive, Herndon, Virginia 20170, United States of America. ("Registrar").

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center ("the Center") in electronic form on May 8, 2002, and in hard copy (including the appropriate fee) with attachments on May 13, 2002. The Registrar verified the information required by Paragraphs 2 (a) and 4 of the Rules for Uniform Domain Name Dispute Resolution Policy ("UDRP Rules") on May 17, 2002. The Center’s formal requirements checklist was completed on May 28, 2002. The Panel agrees with the Center’s assessment concerning the Complaint’s compliance with the formal requirements.

A Notification of Complaint and Commencement of Administrative Proceeding was sent to the Respondent (including its Technical, Administrative and Billing Contacts) by post/courier (to the Administrative/Billing Contact) with attachments, by email and facsimile on May 28, 2002.

Deliveries to the email addresses and by post/courier were confirmed. Delivery by facsimile was not confirmed. Copies were also sent to Complainant, to ICANN and to the Registrar.

No Response having been received from the Respondent, the Center sent a Notification of Respondent Default on June 19, 2002.

Having submitted a Statement of Acceptance and Declaration of Impartiality and Independence, David W. Maher was appointed as the Single Member Panel on July 2, 2002. The Panel was required to forward its decision to the Center by July 16, 2002.

Rule 14 (a) of the UDRP Rules provides:

"In the event that a Party, in the absence of exceptional circumstances, does not comply with any of the time periods established by these Rules or the Panel, the Panel shall proceed to a decision on the complaint."

Having reviewed the file, the Panel concludes that the Complaint complied with the applicable formal requirements, was properly notified, and has been submitted to a duly appointed Panel in accordance with the Uniform Domain Name Dispute Resolution Policy ("the Policy") applicable to the Domain Name. There were no further submissions, extensions granted or orders issued. The language of the proceeding is English.

4. Factual Background

Rule 14 (b) of the UDRP Rules provides:

"If a Party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, these Rules or any request from the Panel, the Panel shall draw such inferences therefrom as it considers appropriate."

Pursuant to the provisions of Rule 14 (b), the Panel accepts Complainant’s characterization of the factual background contained in the Complaint, namely: Complainant is a company that provides services which involve designing, assembling, and conducting exhibits for trade shows, exhibitions, corporate events, and other special events, and services in support of Complainant’s primary business, including on-line ordering and designing of exhibits. Complainant has adopted and is using a number of trademarks and service marks in connection with its products and services which serve to distinguish them from those of its competitors. One of Complainant’s marks is FREEMAN DECORATING COMPANY, registered in the United States Patent and Trademark Office, Registration No. 1, 877, 988, registered Feb. 7, 1995, with first use and use in commerce claimed as of September 1,1981.

In May, June and July, 2002, Complainant attempted to communicate with the person named as Administrative Contact for Respondent by mail and certified mail, but its letters were returned.

On March 13, 1999, Respondent registered the Domain Name. Respondent uses the Domain Name for a web site that currently states:

"www.freemandecorating.com

www.freemandecorating.com is coming soon! Welcome to your new Internet domain!

Our Web Site will be online soon. Thank you for your patience while we build

our site. Please visit us again."

The site also contains the logo of EarthLink, an Internet service provider.

Earlier versions of Respondent’s web site stated that is was "Under Construction".

5. Parties’ Contentions

A. Complainant contends that Respondent’s registration and use of the Domain

Name violates all three elements of Paragraph 4(a) of the Policy, in that:

(i) the Domain Name is identical or confusingly similar to Complainant’s trademark

rights in FREEMAN DECORATING COMPANY and FREEMAN; and

(ii) Respondent has no rights or legitimate interests in respect of the Domain

Name; and

(iii) the Domain Name has been registered and is being used in bad faith.

Complainant further contends that Respondent’s registration and use of the

Domain Name is in bad faith within the meaning of that phrase as used in the

United States Anticybersquatting Consumer Protection Act.

B. Respondent has not filed a Response in this proceeding.

6. Discussion and Findings

The Panel finds that Complainant has trademark rights in FREEMAN and FREEMAN DECORATING COMPANY

based on its use of the name and its trademark registrations. The Panel finds

that the Domain Name "is identical or confusingly similar to" FREEMAN

and to FREEMAN DECORATING COMPANY.

There is nothing in the record in this case to show that Respondent has rights

or legitimate interests in the Domain Name. None of the circumstances enumerated

in Paragraph 4 (c) of the Policy apply to Respondent. Respondent has shown no

use or preparation to use the Domain Name in connection with a bona fide offering

of goods or services, nor has Respondent been commonly known by the Domain Name.

There is no evidence that Respondent been making a legitimate noncommercial

or fair use of the Domain Name.

The Panel finds that Respondent does not have rights or legitimate

interests in respect of the Domain Name within the meaning of Paragraph 4 (a)

(ii) of the Policy.

Further, the Panel finds that Respondent’s registration and use of the Domain

Name is in bad faith within the meaning of Paragraph 4 (a) of the Policy. The

Complaint refers to Respondent’s use (or non-use) of the Domain Name (See Complaint,

Paragraph 11, et al.) in a somewhat confusing manner, but it is clear from the

record that Respondent is using the Domain Name for a web site.

With respect to the circumstances listed in Paragraph 4 (b) of the Policy as

evidence of registration and use in bad faith, Respondent’s behavior documented

in the record does not clearly fall within any of the four categories. For example,

Respondent’s registration of the Domain Name prevents Complainant from reflecting

its service mark in a corresponding Domain Name, but there is nothing in the

record to establish a pattern of such conduct (other than, arguably, the pattern

of two years of claiming to be "under construction"). The circumstances

listed in Paragraph 4(a) do not exclude other bases for a finding of registration

and use in bad faith. The Panel finds that, on this record and in the absence

of any showing of rights or legitimate interest by Respondent, it is reasonable

to infer bad faith in Respondent’s registration and use of the Domain Name.

7. Decision

Pursuant to Paragraphs 4 (i) of the Policy, and 15 of the Rules, the Panel

directs that the Domain Name <freemandecorating.com> be transferred to

Complainant.

David W. Maher

Sole Panelist

Dated: July 12, 2002