Stuart Mullins MD v. Pacific Netdesign
Claim Number: FA0707001030879
Complainant is Stuart Mullins, MD (“Complainant”),
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <esirecruit.com>, registered with Network Solutions, Inc.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge she has no known conflict in serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically July 11, 2007; the National Arbitration Forum received a hard copy of the Complaint July 18, 2007.
On July 11, 2007, Network Solutions, Inc. confirmed by e-mail to the National Arbitration Forum that the <esirecruit.com> domain name is registered with Network Solutions, Inc. and that Respondent is the current registrant of the name. Network Solutions, Inc. verified that Respondent is bound by the Network Solutions, Inc. registration agreement and thereby has 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 30, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of August 20, 2007, 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 firstname.lastname@example.org by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On August 27, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. Carolyn Marks Johnson as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant fails to make assertions relating to the sections of UDRP Policy that are generally considered in this type of claim.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Executive Search International Australia Pty Ltd, alleges that Respondent registered the <esirecruit.com> domain name under the name “Pacific Netdesigns” without informing Complainant. Complainant purportedly brings this action because it has not been able to locate Respondent.
Respondent registered the disputed domain name June 11, 2001.
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 will draw such inferences as the Panel considers to be 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.”).
Paragraph 4(a) of the Policy requires Complainant to 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.
Because Complainant has not submitted allegations to enable the Panel to find that Complainant has either common law or legal rights in any trademark in association with this dispute, Complainant has failed to satisfy the requirements of Policy ¶ 4(a)(i). The Panel is unable to find that a domain name is identical to or confusingly similar to a mark in which Complainant has rights unless Complainant provides the Panel with allegations and proof that Complainant has rights in such a protected mark. See Brinks Servs. Inc. v. Holt, FA 324699 (Nat. Arb. Forum Nov. 4, 2004) (finding that the complainant did not have standing to bring a complaint under the Policy because the complainant did not provide any evidence that it had valid trademark registrations for the mark or common law rights in the mark, and the complainant did not even suggest how long it had used the mark or identified what services were connected with the mark); see also Retail Indus. Leaders Assoc., Inc. v. R.I.L.A., FA 347841 (Nat. Arb. Forum Dec. 20, 2004) (“Complainant neither asserted common law rights in the RILA service mark nor supplied evidence that it has acquired common law rights in the mark. Therefore, the Panel finds that Complainant failed to establish common law rights in the RILA mark; therefore, Complainant lacks standing under the Policy.”).
Similarly, Complainant has failed to show rights or legitimate interests in the mark and has failed to allege that Respondent lacks such rights. Further, Complainant has failed to show the use Respondent has made or is making of the domain name. In addition Complainant failed to set forth allegations or evidence of Respondent’s bad faith registration and use.
The Panel finds that although the Panel could infer that Complainant claims rights in a mark used in the disputed domain name, the absence of such allegations and proof, leaves the Panel only the option of denying Complainant’s claim as presented. See Claessens Prod. Consultants BV v. Claessens Int’l Ltd., FA 238656 (Nat. Arb. Forum Apr. 23, 2004) (finding that Complainant failed to meet its burden pursuant to Policy ¶ 4(a)(ii) where Complainant neglected to state how Respondent used the disputed domain name in the Complaint).
This ruling does not prevent Complainant from re-filing this action with appropriate allegations and proof, if any exists.
Having failed to establish all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED. This Cause is dismissed without prejudice to Complainant’s refilling.
Hon. Carolyn Marks Johnson, Panelist
Dated: September 10, 2007.
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