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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Palm Pictures, L.L.C. v. NULL

Case No. D2000-1676

 

1. The Parties

The Complainant in this administrative proceeding is Palm Pictures, L.L.C., a New York corporation doing business at 4 Columbus Circle, 5^th Floor, New York, New York 10019, U.S.A.

The Respondent is NULL, of Null, California 90210, U.S.A.

 

2. The Domain Name and Registrar

The domain name in dispute is "hannibalrecords.com". The domain name was registered with Tucows.com, Inc., of Toronto, Canada, on March 15, 2000.

 

3. Procedural Background

On December 1, 2000, the WIPO Arbitration and Mediation Center received from Complainant via e-mail a complaint for decision in accordance with the Uniform Policy for Domain Name Dispute Resolution, adopted by the Internet Corporation of Assigned Names and Numbers (ICANN) on August 26, 1999 ("Policy"), the Rules for Uniform Domain Name Dispute Resolution Policy, approved by ICANN on October 24, 1999 ("Rules"), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (Supplemental Rules).

The Complaint was filed in compliance with the requirements of the Rules and the Supplemental Rules, payment was properly made, the administrative panel was properly constituted, and the panelist submitted the required Statement of Acceptance and Declaration of Impartiality and Independence.

The instant Administrative Proceeding was commenced on December 18, 2000.

Respondent did not file a Response, and a "Notification of Respondent Default," dated January 11, 2001, was forwarded by WIPO to Respondent.

The decision of the Panel was due to WIPO on or before January 30, 2001.

 

4. Factual Background

As set forth in the Complaint, Complainant Palm Pictures and its predecessors-in-interest have used the marks HANNIBAL RECORDS and DESIGN and HANNIBAL in connection with selling musical recordings, compact discs, vinyl records, video discs, and video cartridges since at least as early as 1980. Complainant's services are advertised in major media and Complainant has spent millions of dollars in advertising and promoting its services under its marks. U.S. Trademark Registration No. 1,963,617 has been issued for the mark HANNIBAL RECORDS and DESIGN and Registration No. 1,959,494 has been issued for the mark HANNIBAL. See Complaint, Exhibit E.

As noted above, Respondent registered the domain name in dispute on March 15, 2000. On July 18, 2000, Complainant sent the former registrant of the disputed domain name, then listed as INSS, a letter and e-mail regarding registration of the "hannibalrecords.com" domain name. Subsequently, INSS removed a bounce link from "hannibalrecords.com" to a pornographic site and the WHOIS database information was changed to remove all contact information for the registrant.

At least as of November 28, 2000, Respondent has not established any website in connection with the domain name. In fact, the domain name is currently being offered for sale on the auction site Great Domains.com. See Complaint, Exhibit F. The minimum offer amount is $300.00.

 

5. Parties' Contentions

Complainant contends, first, that the domain name in issue wholly incorporates and is confusingly similar to Complainant's marks.

Complainant further argues that Respondent can demonstrate no legitimate interest in the "hannibalrecords.com" domain name. In support of this assertion, Complainant notes and argues that: (1) the domain name registration was obtained long after Complainant established rights in its marks; (2) there exists no relationship between the parties that would give rise to any license, permission, or authorization by which Respondent could own the domain name; and (3) Respondent has not used the name in connection with a bona fide offering of goods or services, is not commonly known by the domain name and is not making a legitimate noncommercial or fair use of the name.

Finally, Complainant urges that the Registrant registered and used the domain name in "bad faith." In support of this contention, Complainant indicates, inter alia, that: (1) Respondent has either registered the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name; or (2) has done so to prevent Complainant from reflecting its marks in a correspondent domain name or to misappropriate the goodwill associated with Complainant's marks for Respondent's own profit; and (3) Respondent has failed to use the domain name to sell or provide any goods or services.

 

6. Discussion and Findings

The Panel has carefully weighed the evidence presented and determines that Complainant clearly has met the requirements set forth in ¶4.a. of the Policy.

There is no question that the domain name in dispute is confusingly similar to Complainant's marks. The domain name wholly incorporates Complainant's HANNIBAL RECORDS mark. The addition of the top-level domain ".com" is without legal significance.

It is also clear that Complainant, through its long use of the HANNIBAL RECORDS and DESIGN and HANNIBAL marks, has rights thereto. (Footnote 1)

There also is no evidence that Respondent has rights or legitimate interests with respect to the domain name. As noted by Complainant, there is no evidence that Respondent has used the name in connection with a bona fide offering of goods or services, is commonly known by the domain name or is making legitimate noncommercial or fair use of the name.

Finally, there is ample evidence to support a determination of "bad faith" registration and use. The evidence, in particular, Respondent's offer on the GreatDomains.com website to sell the domain name for a minimum of $300, establishes that Respondent registered the domain name primarily for the purpose of selling or otherwise transferring the domain name registration for valuable consideration in excess of his documented out-of-pocket costs, within the meaning of ¶4.b.(i) of the Policy.

Further, Respondent's passive holding of the disputed domain name also supports a determination of "bad faith" registration and use. See, for example, Chernow Communications v. Kimball, WIPO Case No. D2000-0119; Mondich and American Wine Biscuits, Inc. v. Brown, WIPO Case No. D2000-0004.

 

7. Decision

In view of the above, the Panel GRANTS Complainant's request for transfer to it of the domain name "hannibalrecords.com".

 

 

Jeffrey M. Samuels
Sole Panelist

Dated: January 30, 2001

 

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Footnote:

1. In its Complaint, Complainant alleges that it owns the U.S. registrations for the HANNIBAL marks. However, the evidence, including Exhibit E and the U.S. Patent and Trademark Office's automated records, indicates that the registrations are owned by Rykodisc Records. Rykodisc is Complainant's predecessor-in-interest and present affiliate. The record does not indicate that the registrations have been assigned to Complainant. The unrebutted evidence indicates, however, that Complainant has used the HANNIBAL marks and it is on this basis that the Panel concludes that Complainant has rights in the marks.