Bad Faith “impossible” domain reg’d 11-years ago

National Arbitration Forum Ruling: Complainant Domain TheSnugg.com vs Respondent Domain Snugg.com

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

PARTIES’ CONTENTIONS

A. Complainant:

1. Complainant has rights in the SNUGG mark which it uses in connection with protective holder and cases, retaining straps, and stands all adapted for portable electronic equipment;

2. Complainant registered the SNUGG mark (Reg. No. 4,075,899 filed May 17, 2011; registered December 27, 2011) through the United States Patent and Trademark Office (“USPTO”);

3. Respondent registered the domain name on September 14, 1999;

4. The domain name is identical to Complainant’s SNUGG mark;

5. Respondent is not commonly known by the disputed domain name;

6. The domain name resolves to a website which promotes products which compete with the products Complainant provides through links to Complainant’s competitors;

7. The domain name is not being used for either a bona fide offering of goods or services nor a legitimate noncommercial or fair use;

8. Respondent’s registration and use of the domain name are a product of bad faith;

9. Respondent registered and is using the disputed domain name to take commercial advantage of Internet users’ mistakes as to the source of the disputed domain name.

B. Respondent

Respondent did not submit a Response.

FINDINGS

For the reasons set forth below, the Panel finds Complainant is not entitled to the relief requested.

DISCUSSION

Paragraph 15(a) of 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 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 Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and

(2) 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.

(4) Paragraph 15(a) of 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.”

In view of Respondent’s failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant’s undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).

Identical and/or Confusingly Similar and Rights or Legitimate Interests

As the Panel finds Complainant failed to satisfy Policy ¶ 4(a)(ii) (Registration and Use in Bad Faith), the Panel declines to analyze Policy ¶ 4(a)(i) and Policy ¶ 4(a)(ii). See Creative Curb v. Edgetec Int’l Pty. Ltd., FA 116765 (Nat. Arb. Forum Sept. 20, 2002) (finding that because the complainant must prove all three elements under the Policy, the complainant’s failure to prove one of the elements makes further inquiry into the remaining element unnecessary).

Registration and Use in Bad Faith

Complainant does not allege common law rights in the mark. Complainant’s trademark rights in its SNUGG mark date back to May 17, 2011. Respondent’s registration of the disputed domain name on September 14, 1999, predates Complainant’s rights in the SNUGG mark by over 11 years. There is no evidence presented that Complainant existed when the domain name was registered. Therefore, the Panel finds that Respondent did not register the disputed domain name in bad faith under Policy ¶ 4(a)(iii). See Telecom Italia S.p.A. v. NetGears LLC, FA 944807 (Nat. Arb.Forum May 16, 2007) (determining the respondent could not have registered or used the disputed domain name in bad faith where the respondent registered the disputed domain name before the complainant began using the mark); see also Aspen Grove, Inc. v. Aspen Grove, D2001-0798 (WIPO Oct. 5, 2001) (finding that it is “impossible” for the respondent to register disputed domain name in bad faith if the complainant company did not exist at the time of registration).

Complainant has not proven this element.

DECISION

Complainant having failed to establish all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.

Accordingly, it is ORDERED that the domain name REMAIN WITH Respondent.

Honorable Karl V. Fink (Ret.), Panelist

Dated: March 26, 2012

Category defining: CorporateCommunications.com

The category defining name to own if you are in the corporate communications business. Owned since 1999. Sharp price reduction: For more details and to possibly buy or make an offer please click-on the picture below…

This name was verbally valued at approxiamtely 500k to 600k by a domain broker in 2009 who now works as a broker for a major domain firm.

Major Dilution to Existing .tld extensions i.e. .net

We have been writing for some time about the massive dilution to the current major domain name extensions which will be caused by the anticipated vast number of new gtld’s expected to be introduced starting in 2012.

As an example of dilution, we will discuss the long-time well known dot-net extension. It’s always played 2nd fiddle to the vastly superior dot-com however .net will soon have lots of competitors competing with it and causing general overall dilution to all extensions and to dot-net in particular.

The initial high Icann cost of $185k to buy your own extension will no doubt result in mostly the top brands or keywords being purchased at this time. However, we are sure the cost will drop a lot and more and more mid-size or non-famous brands and keywords will eventually have their own extension.

Using dot-net direct competition as an example it’s likely extentions such as .met (dating?), .let (EU rentals?), .pet (pets?), .wet (water/pools?), .bet (gambling?), .get (search?), .jet (jet sales?), .vet (veterans?), plus longer ones like .mynet .enet .inet .netgear and the real obvious .network will be taken in the future.

With so many similar potential domain name extensions all competing for Internet traffic and marketing themselves it would seem after a few years the direct dilution just to the old dot-net extension will result in many people saying ‘dot-who’ about dot-net. Therefore, we can predict the already low value .net domains will decline even more in general value.

Massive Dilution caused by New Domain Extensions

We have been saying for years (starting when the new extension plan was first announced a long time ago) the new domain-name extensions will bring about massive dilution in the name space and overall negativity to the value of the current major domain extensions.

In a few years the cost of buying your own extension could easily decline significantly belowr the current high cost of almost 200k, possibly all the way down to the 3 figure range where most individuals and small businesses could also afford to buy their own domain extension.

A huge benefit to owning your own domain name extension is only the extension could be typed-in (depending on how the DNS is setup) and the visitor would go right to that website based on the extension only. A few examples are by typing in Ebay you would not need to typein Ebay.com, or typein FreeMLSlisting and no need to typein FreeMLSlisting.com (and potentially zillions of others too).

Google’s Valentine Day Domain Names

As posted about on DomainNameWire.com, Google has registered the domains GoogleValentine.com and GoogleValentine.org on Feb 8, 2011. Since only the .com and .org were mentioned we checked Whois and see they also registered GoogleValentine.net at the same time, in addition to some other Valentine’s Day domains Google registered.

Since Valentine’s Day is only 4 days away we don’t see how there could be sufficient time this year (but if not this year, maybe next year?) for Google to get geared-up in time to actually use the domains as some kind of Valentine’s Day promotion, i.e. maybe you will be able to go to Google and get an Online Valentine? (don’t bother trying to get OnlineValentine.com as it’s been registered since 1999).

Below is our Valentine’s Day wish to you…

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Will GoDaddy’s Super Bowl Ad be a Success?

Godaddy is spending a ton of money on their Super Bowl ad and other heavy .CO marketing but will it make the .CO extension (.CO is actually the South America Nation of Columbia country code) an Internet success?

In our opinion, it’s already apparent .CO will be a flop as far as long-term value goes, and actual use. There are very few .CO developed sites and it has a poor resale market, with rare sales (except for occasional sales of strong single word names).

With that said, .CO is already a big financial success as far as registry and registrars income is concerned, thanks to brilliant and costly marketing, defensive registrations and domainers who can’t get the .COM and think .CO is a good replacement for speculation purposes.

A big hope with .CO was the anticipation of .co getting substantial ‘typo’ or ‘spillover’ traffic intended for the .COM but I can tell you from good first-hand experience that is not happening now, and is also extremely unlikely to occur in the future.

Buy a domain name or order webhosting by clicking below:

A slightly modified version of this article was published today in Fortune Magazine & CNN Money

Learn How Many are Searching for Your Domain

If you have your domain names registered at Godaddy.com you have the unique ability to discover exactly how many people are looking up your Whois information on the Godaddy site. This is very cool.

I am starting to think it may even be worthwhile to use Godaddy more simply to take advantage of this powerful feature. Knowing how many people looked up your Whois information can have major benefits, not the least of which is it can indicate how many possible buyers you might have and you can rank your domains in value based on the number of Whois searches performed.

For example, say you have a low traffic and lightly searched term but suddenly you see several Whois lookups. That can indicate there may be a buyer for your domain or website out there, possibly an end-user who will likely pay a lot more vs a typical low-balling domainer. It’s hard to understand why this very cool and great Godaddy feature has not received more publicity, or other domain registrars apparently do not offer it.

This is how you can discover the number of Whois searches performed on your domains using Godaddy: Go to the Domain Manager, mouse-over the Tools tab at top and click-on Exportable Lists. Next click on Add New Export with a drop-down list. Select All My Domains and click Next.

Now you can select the data to export. Check-off exporting both Current and Previous Period Whois Searches, and click-on Next. Then select CSV file for use by opening your Excel spreadsheet program. Probably no need to compress the data so select “none”. Give the exportable list a Name and click-on Finish. After a few minutes GoDaddy will compile the list and email it to you.

Buy a domain name or order website hosting by going to the Godaddy banner below: