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Aero Turbine, Inc. v. McAyman Limited
[Indexed as: Aero Turbine v. McAyman]
[Indexed as: aeroturbine.net]
The National Arbitration Forum
Forum File No. 0002000093675
Commenced: 10 February 2000
Judgment: 28 February 2000
Presiding Arbitrator: Judge Henry X. Dietch (Ret.)
Domain name - Domain name dispute resolution policy - U.S. Trademark
- U.S. Service mark - Identical - Confusingly similar - Bad faith registration
- Bad faith use.
Complainant was registrant of United States trademark and United
States service mark. Registrant registered the domain name, aeroturbine.net.
Complainant alleged that its registered mark and the registered domain
name were identical and that Respondent registered the domain name at issue
in bad faith.
Held, Name Transferred to Complainant.
The registered domain name is identical to or confusingly similar
to Complainant's registered trademark as well as its legal corporate name,
which Complainant has used at least two years prior to Respondent's registration.
Respondent does not have any rights or legitimate interests in respect
of the domain name.
Respondent registered and used the domain name in bad faith. Respondent
registered the domain name primarily for the purpose or disrupting the
business of the Complainant. Also, Respondent used the domain name to attract
Internet users for commercial gain by creating the likelihood of confusion
with Complainant's mark.
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Policies referred to
Uniform Domain Name Dispute Resolution Policy, adopted August
26, 1999
Registration Agreements referred to
Network Solutions Domain Name Registration Agreement, effective
October 29, 1999
Panel Decision referred to
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Dietch, Arbitrator: -
The above-entitled matter came on for an administrative hearing on February
28, 2000, before the undersigned on the Complaint of Aero Turbine, Inc.,
hereinafter referred to as "Complainant" against McAyman, Limited, hereinafter
referred to as "Respondent." The complaint was signed by Lawrence H. Brinker,
Vice President and General Counsel of Aero Turbine, Inc. A Response was
filed by Chris Dumont, Quality Manager, on behalf of McAyman, Limited.
In addition, Complainant filed a Rebutttal to Respondent's Response.
Upon the written submitted record, the following Decision is made:
Procedural Findings
Domain Names: areoturbine.net;
Domain Name Register: Network Solutions;
Date of Domain Name Registration: 10/29/99;
Date Complaint Was Sent to Respondent In Accordance With Rule 2(a)02/10/00;
Response by Respondent: 02/14/00;
Rebuttal Response By Claimant: 02/16/00.
*All references to "Rule" and to ICANN'S Rules For Uniform Name Dispute
Resolution Policy.
The Complainant filed its Complaint with the National Arbitration Forum
on February 10, 2000. After reviewing the Complaint for administrative
compliance, the Forum transferred the Complaint to the Respondent in compliance
with Rule 2(A), and the administrative proceeding was commenced pursuant
to Rule4(a). In compliance with Rule 4(a), the Forum immediately notified
the above Registrar, ICANN, and the Complainant that the administrative
proceeding had commenced.
The Respondent filed a response on February 14, 2000, to which the Complainant
filed a Rebuttal response on February 16, 2000. Respondent had registered
the domain name with Network Solutions, the entity that is the Registrar
of the domain name, on October 29, 1999, as "aeroturbine.net." By registering
its domain name with Network Solutions, the Respondent agreed to make any
dispute regarding its domain name through ICANN's Uniform Domain Dispute
Resolution Policy.
Findings of Fact
I have examined all of the pertinent documents and find as follows:
| 1. |
The Complaint is based on the following trademark as well
as service mark registered as of July 13, 1999, and the corporate name
of the Complainant: aeroturbine and Corporate Name: Aero Turbine, Inc. |
| 2. |
The registered domain name is identical to or confusingly
similar to Complainant's registered trademark as well as its legal corporate
name. The Complainant has used its trademark service mark and corporate
name for at least two years prior to Respondent's registration. Claimant
has used its corporate and trademark names continuously and extensively
in interstate and international commerce in connection with advertising
and sale of its goods and services. It has also invested substantial sums
of money in developing and marketing its services. Respondent was well
aware of these facts as a result of sending its purchase order for a Rolls
Royce Engine to Complainant dated December 11, 1998. |
| 3. |
The Respondent does not have any rights or legitimate interests
in respect of the domain name that is the subject of the Complaint. The
Respondent had known of the mark when dealing with Complainant on a purchase
order in previous negotiations and to attempt to misleadingly divert customers
to do business with it and to subvert Complainants' use of its service
mark. |
| 4. |
It is patently clear that the domain name should be considered
as having been registered and being intended to be used in bad faith. In
effect, the Respondent has registered the domain name primarily for the
purpose of disrupting the business of the Complainant and by using the
domain name to attract for commercial gain, Internet users by creating
the likelihood of confusion with Complainant's mark and affiliation as
well as its corporate name. |
Conclusions of Law
The undersigned certifies that he has acted independently and has no
known conflict of interest to serve as the arbitrator (One Arbitrator Panel)
in this proceeding.
Having been duly selected and being impartial, the undersigned has made
the above Findings Of Fact and concludes therefore that the Complainant's
rights are superior to those of Respondent as a matter of law and is entitled
to the domain name in controversy and that Respondent has acted improperly
and is using the domain name in bad faith.
Decision
Based upon the above Findings of Fact and Conclusions Of Law and pursuant
to Rule 4(i), it is decide as follows:
I FIND FOR THE COMPLAINANT AND ORDER THE TRANSFER OF THE RESPONDEN'T
S DOMAIN NAME TO THE COMPLAINANT AS FOLLOWS:
"aeroturbine.net"
Dated: February 28, 2000,
by Judge Henry X. Dietch (Ret.),
Arbitrator |
