Auction Network, LLC v. COM2000
Claim Number: FA0708001061145
Complainant is Auction Network, LLC (“Complainant”), represented by Robert Bridges, of Auction Network, LLC, 7666 E. 61st Street, Ste 550, Tulsa, OK 74133. Respondent is COM2000 (“Respondent”), 16E Mai On Industrial Bldg, 17-21, Kung Yip, St Kwai Chung, New Territories HK.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <auctionnetwork.com>, registered with Network Solutions, Inc.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On August 23, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of September 12, 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 postmaster@auctionnetwork.com by e-mail. A late, non-conforming response was received but not considered.
Having received no compliant Response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default. Both parties sent subsequent emails which did not meet the requirements for Additional Submissions set forth in Supplemental Rule #7 and, therefore, were not considered.
On
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum has 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 makes the following assertions:
1. Respondent’s <auctionnetwork.com> domain name is identical to Complainant’s AUCTION NETWORK mark.
2. Respondent does not have any rights or legitimate interests in the <auctionnetwork.com> domain name.
3. Respondent registered and used the <auctionnetwork.com> domain name in bad faith.
B. Respondent failed to submit a compliant Response in this proceeding.
Complainant, Auction Network, LLC, is an auction company
that conducts business through, television, Internet, and web advertising. Complainant appears to have offered its
auction services under the AUCTION NETWORK mark since 2006. Complainant holds a trademark registration
for the AUCTION NETWORK mark with the State of
Respondent registered the <auctionnetwork.com> domain name on May 16, 1996. Respondent is not using the disputed domain name for any purpose except to offer it for sale.
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 compliant 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 draw such inferences it 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 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 that 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 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 alleges rights in the AUCTION NETWORK mark by
virtue of its pending trademark application with the USPTO. In accordance with several previous UDRP
decisions, the Panel finds that this is insufficient to establish Complainant’s
rights in the AUCTION NETWORK mark under Policy ¶ 4(a)(i). See Wave Indus., Inc. v. Angler Supply,
FA 304784 (Nat. Arb. Forum Sept. 20, 2004) (finding that the complainant’s
pending trademark applications did not establish rights because “an application
for [a] mark is not per se sufficient to establish rights [in] a
trademark for the purposes of the [Policy]”); see also Razorbox, Inc. v. Skjodt, FA 150795 (Nat. Arb. Forum May 9, 2003)
(“Complainant’s pending trademark application does not in and of itself
demonstrate trademark rights in the mark applied for.”).
Complainant is not required to own a trademark registration
to assert rights in a mark under Policy ¶ 4(a)(i). However, Complainant has not
provided sufficient evidence that would allow the Panel to find that the mark
has acquired secondary meaning sufficient to establish Complainant’s common law
rights in the AUCTION NETWORK mark.
Although Complainant’s state registration of the mark indicates that
Complainant may have rights in the mark, this alone is not enough for the Panel
to find common law rights in the AUCTION NETWORK mark. Therefore, the Panel finds that Complainant
has not shown enough evidence of rights in the AUCTION NETWORK mark pursuant to
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 Molecular Nutrition,
Inc. v. Network News & Publ’ns, FA
156715 (Nat. Arb. Forum June 24, 2003) (finding that the complainant failed to
establish common law rights in its mark because mere assertions of such rights
are insufficient without accompanying evidence to demonstrate that the public
identifies the complainant’s mark exclusively or primarily with the
complainant’s products); see also Advanced Relational Tech., Inc. v. Domain
Deluxe, D2003-0567 (WIPO Oct. 13, 2003) (finding that the complainant failed to
establish rights in the HOME DESIGNER mark because it was “certainly descriptive and probably generic” and the
complainant had not shown that the public identified its goods with the mark).
Further, the Complaint
indicates that Complainant’s earliest use of the AUCTION NETWORK mark was in
2006. As such, Complainant has failed to
provide any evidence indicating that it could have rights in the AUCTION
NETWORK mark that predate Respondent’s registration of the <auctionnetwork.com> domain name in 1996.
The Panel finds that Policy ¶ 4(a)(i) has not been satisfied.
Since Complainant has failed to meet its burden on the first of the three required elements under the Policy, the Panel finds it unnecessary to make findings under the other two elements, as the Complaint must fail.
Having failed to establish all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.
Sandra J. Franklin, Panelist
Dated: October 2, 2007
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