Domain Statute

 

 

DECISION

 

Amerivison Communications, Inc. v. Life Line

Claim Number: FA0107000098081

 

PARTIES

The Complainant is Amerivision Communications, Inc., Oklahoma City, OK (“Complainant”) represented by Bruce A. McDonald, of Wiley, Rein & Fielding.  The Respondent is Life Line, Clearwater, FL (“Respondent”) represented by Inna Tsimerman, of Seyfarth Shaw.

 

REGISTRAR AND DISPUTED DOMAIN NAME 

The domain name at issue is <lifeline.com>, registered with Network Solutions.

 

PANEL

The undersigned certifies that he has acted independently and impartially and to the best of his knowledge, has no known conflict in serving as Panelist in this proceeding.

 

Judge Irving H. Perluss (Retired) is the Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (“the Forum”) electronically on July 19, 2001; the Forum received a hard copy of the Complaint on July 23, 2001.

 

On July 24, 2001, Network Solutions confirmed by e-mail to the Forum that the domain name <lifeline.com> is registered with Network Solutions and that the Respondent is the current registrant of the name.  Network Solutions has verified that Respondent is bound by the Network Solutions 5.0 registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).

 

On July 24, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of August 13, 2001 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts, and to postmaster@lifeline.com by e-mail.

 

A timely response was received via electronic copy on August 13, 2001.  The hard copy of the response with exhibits arrived on August 15, 2001.  Although the receipt of the attachments could be considered to be one day late, they will be considered by the Panel in his discretion.

 

A timely additional submission was filed by Respondent, arguing that the attachments previously submitted were timely.  The issue is moot since, as above indicated, the Panel will consider the attachments submitted by Respondent.

 

On August 21, 2001, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed Judge Irving H. Perluss (Retired) as Panelist.

 

RELIEF SOUGHT

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

 

PARTIES’ CONTENTIONS

A. Complainant

            1.         Complainant registered the service mark “LIFELINE” on January 26, 1993, with the United States Patent and Trademark Office, in connection with charitable fund raising services.  The mark has been continuously used in commerce by Complainant since June 28, 1988.

 

            2.         The disputed domain name was registered by Respondent on May 17, 1995, and it is identical and/or confusingly similar to Complainant’s mark.

 

            3.         Respondent has no rights or legitimate interest in the disputed domain name because Respondent abandoned the name.  Respondent’s registration expired on May 18, 2001.

 

            4.         Respondent has registered and used the disputed domain name in bad faith because it has rejected Complainant’s attempts to acquire the name by virtue of Complainant’s prior federal service mark registration.

 

B. Respondent

            1.         The disputed domain name is comprised of two generic terms and, thus, it is not confusingly similar to Complainant’s service mark.  Moreover, many other entities use the generic words “life” and/or “line” in a federally registered mark or domain name.

 

            2.         Respondent has not abandoned the disputed domain name, and the clerical error by the Registrar which seemed to so indicate now has been corrected.

 

            3.         Respondent has rights and a legitimate interest in the disputed domain name under Paragraph 4(c) of the Policy.

 

            4.         Its use began on May 17, 1995, in connection with its on-line medical journal long before any notice of a dispute, and its use constitutes a bona fide offering of goods and services in compliance with Paragraph 4(c)(i) of the Policy.

 

            5.         Respondent has been commonly known by the disputed domain name, through its continued use in connection with its on-line medical services.  Thus, it has met the criterion required by Paragraph 4(c)(ii) of the Policy.

 

            6.         Respondent’s goods and services are sufficiently distinct from Complainant’s to establish there is no intent by Respondent to divert consumers or to tarnish Complainant’s service mark showing compliance with Paragraph 4(c)(iii) of the Policy.

 

            7.         Respondent registered and is using the disputed domain name in good faith and has done this for a long and continuous time.  The domain name was not registered with the intent of selling it to Complainant.  Moreover, the name was not registered to prevent Complainant from reflecting its mark in a corresponding domain name, and, in fact, Complainant has registered the domain name “lifeline.net.” Finally, Respondent did not register the disputed domain name to disrupt Complainant’s business or intentionally to attract consumers by the likelihood of confusion as to source, sponsorship, affiliation or endorsement of Respondent’s services or products.  Complainant has presented no evidence to the contrary.

 

C. Additional Submissions

            As noted above, Respondent made a timely additional submission dealing with the issue as to whether the attachments to the original Response were timely.  The issue is moot because the Panelist is taking into consideration all submissions, timely or not.

 

DISCUSSION, FINDINGS AND DETERMINATIONS

Paragraph 15(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (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 the 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 the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;

(2) the 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.

 

The Panelist finds that the disputed domain name is not confusingly similar to Complainant’s federally registered service mark under Paragraph 4(a)(i) of the Policy.  This is because the two terms utilized in the disputed domain name are generic, and the name has not acquired a secondary meaning so as to become a famous and distinctive mark.[1]

 

Indeed, the two terms are used as a trademark or a domain name by many others than Complainant, and Complainant cannot claim exclusive use of the terms.[2]

 

The Panel finds and determines that Respondent has not abandoned the disputed domain name, and that it does have rights and a legitimate interest in the name under the elements listed in Paragraph 4(c) of the Policy.

 

A corrected copy of the domain name registration submitted in evidence establishes that the domain name has not been abandoned.

 

Respondent has been using the disputed domain name continuously since its registration in connection with its on-line journal and information referral services.  Accordingly, Respondent’s use began well before any notice of a dispute over the domain name and its use constitutes a bona fide offering of goods and services pursuant to Paragraph 4(c)(i) of the Policy.

 

Respondent has been commonly known by the disputed domain name through its continued use in connection with its on-line medical services.  Thus, it has met the requirement of Paragraph 4(c)(ii) of the Policy.[3]

 

Moreover, Respondent ‘s goods and services are sufficiently distinct from Complainant’s to demonstrate that Respondent lacks the intention to misleadingly divert consumers or tarnish Complainant’s mark within the meaning of Paragraph 4(c)(iii) of the Policy.  Respondent uses the disputed domain mane in connection with on-line medical information services and Complainant’s LIFELINE is for charitable fundraising services.  Thus, no confusion would result given the differences in services offered by Complainant and Respondent.[4]

 

The Panel finds and determines that Respondent has registered and is using the disputed domain name in good faith.  The domain name was not registered with the intent of selling it to Complainant within the meaning of Paragraph 4(b)(i) of the Policy, and Respondent has no obligation to respond to Complainant’s attempts to acquire the disputed domain name.  Moreover, the name was not registered to prevent Complainant from reflecting its mark in a corresponding domain name within the meaning of Paragraph 4(b)(ii) of the Policy, and, in fact, Complainant has registered the domain name “lifeline.net.”  Finally, Respondent did not register the disputed domain name to disrupt Complainant’s business or intentionally to attract consumers by the likelihood of confusion as to source, sponsorship, affiliation or endorsement of Respondent’s services or products within the meaning of Paragraph 4(b)(iii) or 4(b)(iv) of the Policy.  Complainant has presented no evidence to the contrary.

 

DECISION

Based on the above findings and conclusions, it is decided that the claim of Complainant to the domain name <lifeline.com> be and the same is denied.

 

 

JUDGE IRVING H. PERLUSS (Retired), Panelist

 

Dated:  August 28, 2001