Twistys abusing ICANN policies and pushing people around?

DECISION

Internet Billing Company LLC v. Dibill Solutions

Claim Number: FA0210000128682

PARTIES
Complainant is Internet Billing Company LLC, Deerfield Beach, FL (?Complainant?) represented by Barry C. Leeper, of Internet Billing Company LLC. Respondent is Dibill Solutions, Van Nuys, CA (?Respondent?) represented by Stephen H. Sturgeon, of Law Offices of Stephen H. Sturgeon & Associates of Washington DC.

REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <dibill.com>, <dibill.net>, <dibill.biz> and <dibill.info>, registered with TuCows.com & Joker.com.

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.

Bruce E. Meyerson as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the ?Forum?) electronically on October 22, 2002; the Forum received a hard copy of the Complaint on October 23, 2002.

On October 24, 2002, TuCows.com & Joker.com confirmed by e-mail to the Forum that the domain names <dibill.com>, <dibill.net>, <dibill.biz> and <dibill.info> are registered with TuCows.com & Joker.com and that the Respondent is the current registrant of the name. TuCows.com & Joker.com has verified that Respondent is bound by the TuCows.com & Joker.com 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 October 31, 2002, a Notification of Complaint and Commencement of Administrative Proceeding (the ?Commencement Notification?), setting a deadline of November 20, 2002 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 [email protected], [email protected], [email protected], and [email protected] by e-mail.

A timely Response was received and determined to be complete on November 20, 2002.

On December 11, 2002, pursuant to Complainant?s request to have the dispute decided by a single-member Panel, the Forum appointed Bruce E. Meyerson as Panelist.

RELIEF SOUGHT
Complainant requests that the domain names be transferred from Respondent to Complainant.

PARTIES? CONTENTIONS

A. Complainant
Complainant, Internet Billing Company, LLC, is the successor-in-interest to Internet Billing Company, Ltd., following an acquisition by InterCept, Inc. Complaint contends that it has provided billing and collection services and computer consulting services, continually using the IBILL® and IBILL.COM® service marks under the service or trademark IBILL® since 1995, and continues to use the domain name <ibill.com> as the company?s web site. Complainant claims to have invested extensively to promote the IBILL marks and their association with iBill's business goodwill and reputation. Complainant asserts that it has spent over $15 million to develop its web site with the domain name <ibill.com> and promote services under the IBILL marks. During the year 2001, Complainant states that its co-branded billing and collection services handled about $800 million in consumer transactions. Complainant contends that the Dibill domain names are identical and/or confusingly similar to the federally registered iBill marks. According to Complainant, when the Respondent made the decision to conduct business in the same industry, it would have been aware of the existence of iBill?s goods and services. Complainant?s asserts that evidence of Respondent?s clear knowledge and obvious prior recognition of iBill can be seen by the fact that the Respondent actually copied text from the Complainant?s web site. Proof of this can be easily seen, according to Complainant, when reviewing the web pages where both companies describe their service offerings.

B. Respondent
Respondent contends initially that the UDRP was established to permit resolution of cases of ?clear abuse? and this is not such a case. Respondent asserts that the word ?DIBILL? is much different from the alleged trademark ?IBILL.? According to Respondent, registration of five letters for limited use does not give the Complainant the right to all domain names containing the five letters throughout the world. Next, Respondent contends that the Complainant has also failed to sustain its burden of proving that Respondent did not have any legitimate interest in the domain names. In response to Complainant?s allegation that Respondent had knowledge and prior recognition of iBill as shown by the presence of common text on both the iBill web pages and the Dibill web pages, Respondent states that it is possible that both the employees of Complainant and the employees of Respondent obtained the text from the same third-party source. It is also possible, according to Respondent, that the Complainant?s employees copied the text from Respondent?s web pages. Respondent contends that it has established a legitimate interest in the domain name because it is using the domain name in connection with its bona fide business activities. Respondent also contends that the words ?I? and ?Bill? are common words in the dictionary and that Complainant cannot claim exclusive rights to a common word. Respondent contends that where the domain name and trademark in question are generic?and in particular where they comprise no more than a single, short, common word?the rights/interests inquiry is more likely to favor the domain name owner.

FINDINGS
Respondent?s legal name is Dibill Solutions Co. and it does business under the name Digital Internet Billing Co.

DISCUSSION
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.


For the following reasons, the Panel finds it unnecessary to consider each of the foregoing elements. In the final analysis, Complainant?s dispute in this case is really with Respondent?s ?dba?-- Digital Internet Billing, Inc.?and its business plan and promotional material. Indeed, Complainant has argued:

The Respondent, whose company name . . . is ?Dibill Solutions? has not only placed the letter D in front of the iBill name to create the Dibill Domains, but Respondent has also placed the word ?Digital? in front of the Mark ?Internet Billing Company? as can be seen together as ?Digital Internet Billing Company? on the title bars of all their web pages . . . . This constitutes trademark infringement under the federal trademark law, the Lanham Act, 15 U.S.C. sec. 1114, because there would be a likelihood of confusion between iBill?s federally registered Marks for ?iBill/ Internet Billing Company,? and Dibill?s use of ?Digital Internet Billing Company.? Consumers and businesses would confuse Dibill?s goods and services with iBill?s services and wrongly associate the goods and services of the two parties. This is also an act of unfair competition by Dibill, due to the false association with iBill?s services. Such false association is a violation of the Lanham Act, 15 U.S.C. sec. 1125(a). There is a likelihood, that by Dibill launching its business on the Internet, it has gained immediate recognition, because of iBill?s reputation and the extensive use of iBill?s service on the Internet.

(emphasis in original). These objections by Complainant to Respondent?s actions lie at the heart of Complainant?s case; but these are objections to be resolved in other forums, not the ICANN rules.

Indeed, the objective of the ICANN Uniform Policy ?is very narrow. It is concerned . . . with cybersquatting and not commonplace trade mark infringement issues and/or unfair competition issues, however flagrant.? Palm v. South China House of Technology Consultants, D2000-1492 (WIPO Dec. 18, 2000) (emphasis added); see, e.g., Bloomberg v. Secaucus Group, FA 97077 (Nat. Arb. Forum June 7, 2001); see generally R. Badgley, Domain Name Disputes § 5.02 (2002).

Assuming, as we must on this record, that Respondent has in fact established its business under the name Dibill Solutions Co. and is doing business under the name Digital Internet Billing Co., then its domain name ?dibill? can be no more inappropriate than is ?ibill? for Complainant Internet Billing Co. Thus, Complainant?s case must necessarily rise or fall on the propriety of Respondent?s legal and business names, the lawfulness of which are beyond the jurisdiction of this Panel.


DECISION
The Complaint is dismissed for lack of jurisdiction.

Bruce E. Meyerson, Panelist
Dated: December 26, 2002

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