IGC Entertainment Corporation v. Chris Edwards and SPRING Hosting
Claim Number: FA0708001061006
Complainant is IGC Entertainment Corporation (“Complainant”), represented by Ali
R. Baniasadi of Macdonald Sager Manis LLP, 800 - 150
York Street, Toronto, ON M5H 3S5, Canada. Respondent is Chris Edwards and SPRING
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <chokingsports.com> and <nevadasportschedule.com>, registered with Wild West Domains, Inc.
The undersigned certifies that she has acted independently and impartially and that 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 August 13, 2007; the National Arbitration Forum received a hard copy of the Complaint August 14, 2007.
On August 13, 2007, Wild West Domains, Inc. confirmed by e-mail to the National Arbitration Forum that the <chokingsports.com> and <nevadasportschedule.com> domain names are registered with Wild West Domains, Inc. and that Respondent is the current registrant of the names. Wild West Domains, Inc. verified that Respondent is bound by the Wild West Domains, 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 August 21, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 10, 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 email@example.com and 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 September 18, 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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. The domain name that Respondent registered, <chokingsports.com>, is confusingly similar to Complainant’s DAVE COKIN and DAVE COKIN SPORTS marks and the disputed <nevadasportschedule.com> domain name is confusingly similar to Complainant’s and NEVADA SPORTS SCHEDULE mark.
2. Respondent has no rights to or legitimate interests in the <chokingsports.com> and <nevadasportschedule.com> domain names.
3. Respondent registered and used the <chokingsports.com> and <nevadasportschedule.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, IGC Entertainment Corporation, asserts common law rights in the DAVE COKIN, DAVE COKIN SPORTS, and NEVADA SPORTS SCHEDULE marks. However, Complainant did not provide evidence that would be sufficient to enable the Panel to find that the three marks have acquired secondary meaning sufficient to establish those rights.
Respondent registered the <chokingsports.com> domain name April 18, 2007, and the <nevadasportschedule.com> domain name January 25, 2007. The <chokingsports.com> domain name resolves to a complaint website, and Complainant did not make allegations about the use of the disputed <nevadasportschedule.com> domain name.
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."
Given 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 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.”).
However, 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.
Complainant is not required to own a trademark registration to establish rights in the DAVE COKIN, DAVE COKIN SPORTS, and NEVADA SPORTS SCHEDULE marks under Policy ¶ 4(a)(i). See SeekAmerica Networks Inc. v. Masood, D2000-0131 (WIPO Apr. 13, 2000) (finding that the Rules do not require that the complainant's trademark or service mark be registered by a government authority or agency for such rights to exist); see also British Broad. Corp. v. Renteria, D2000-0050 (WIPO Mar. 23, 2000) (noting that the Policy “does not distinguish between registered and unregistered trademarks and service marks in the context of abusive registration of domain names” and applying the Policy to “unregistered trademarks and service marks”).
However, Complainant failed to provide evidence to support Complainant’s assertion that the DAVE COKIN, DAVE COKIN SPORTS, or NEVADA SPORTS SCHEDULE marks have acquired secondary meaning sufficient to establish common law rights in the marks. In addition, even if sufficient evidence establishing common law rights in the marks had been provided, Complainant did not show a likelihood of the right to assert common law rights in the marks. Accordingly, the Panel denies Complainant’s request for transfer of the <chokingsports.com> and <nevadasportschedule.com> domain names. See Weatherford Int’l, Inc. v. Wells, FA 153626 (Nat. Arb. Forum May 19, 2003) (“Although Complainant asserts common law rights in the WELLSERV mark, it failed to submit any evidence indicating extensive use or that its claimed mark has achieved secondary source identity . . . [Complainant’s claim that it is well known] is a finding that must be supported by evidence and not self-serving assertions.”); see also Cyberimprints.com, Inc. v. Alberga, FA 100608 (Nat. Arb. Forum Dec. 11, 2001) (finding that the complainant failed to prove trademark rights at common law because it did not prove the CYBERIMPRINTS.COM mark was used to identify the source or sponsorship of goods or services or that there was strong customer identification of the mark as indicating the source of such goods or services).
Because the Panel finds that Complainant did not satisfy Policy ¶ 4(a)(i), the Panel is not required to, and does not address whether Respondent has rights to or legitimate interests in the disputed domain names pursuant to Policy ¶ 4(a)(ii).
Because the Panel finds that Complainant did not satisfy Policy ¶ 4(a)(i), the Panel is not required to, and does not address whether Respondent registered and is using the disputed domain names in bad faith pursuant to Policy ¶ 4(a)(iii).
Having failed to establish all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.
Hon. Carolyn Marks Johnson, Panelist
Dated: October 2, 2007.
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