national arbitration forum




James McBride v. RBC c/o Andy Kager

Claim Number: FA0708001063470



Complainant is James McBride (“Complainant”), represented by Virginie L. Parant, of Artist Law Group, 3500 W. Olive Avenue, Burbank, CA 91505.  Respondent is RBC c/o Andy Kager (“Respondent”), Froad 980, Barbul, null 34567, BO.



The domain name at issue is <>, registered with Estdomains, Inc.



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.


Judge Ralph Yachnin as Panelist.



Complainant submitted a Complaint to the National Arbitration Forum electronically on August 14, 2007; the National Arbitration Forum received a hard copy of the Complaint on August 21, 2007.


On August 15, 2007, Estdomains, Inc. confirmed by e-mail to the National Arbitration Forum that the <> domain name is registered with Estdomains, Inc. and that Respondent is the current registrant of the name.  Estdomains, Inc. has verified that Respondent is bound by the Estdomains, Inc. 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 September 12, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of October 2, 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 by e-mail.


Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.


On October 9, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Judge Ralph Yachnin as Panelist.


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 cancelled.



A.  Complainant makes the following assertions:


1.      Respondent’s <> domain name is confusingly similar to Complainant’s MR. SKIN mark.


2.      Respondent does not have any rights or legitimate interests in the <>domain name.


3.      Respondent registered and used the <> domain name in bad faith.


B.  Respondent failed to submit a Response in this proceeding.



Complainant, James McBride, provides radio and television programming in the field of news relating to commentary and critical review of movies and celebrities.  In connection with these services, Complainant has registered the MR. SKIN mark (Reg. No. 2,318,438 issued February 15, 2000) with the United States Patent and Trademark Office (“USPTO”).


Respondent registered the <> domain name on November 17, 2006.  The disputed domain name resolves to an inactive website.



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 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 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 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.


Identical and/or Confusingly Similar


Complainant asserts rights in the MR. SKIN mark through registration of the mark with the USPTO.  The Panel finds that Complainant’s timely registration and subsequent use of the MR. SKIN mark sufficiently establishes rights in the mark pursuant to Policy ¶ 4(a)(i).  See Ameridream, Inc. v. Russell, FA 677782 (Nat. Arb. Forum May 24, 2006) (holding that the complainant’s registration of the AMERIDREAM mark with the USPTO established its rights in the mark pursuant to Policy ¶ 4(a)(i)); see also Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004) (“Registration of the NASAL-AIRE mark with the USPTO establishes Complainant's rights in the mark.”).


Respondent’s <> domain name eliminates the term “mr.” and the letter “s” from the dominant portion of Complainant’s mark and adds the descriptive term “movies,” as well the generic top-level domain (“gTLD”) “.com.”  The Panel finds that the aggregate sum of the changes to Complainant’s mark in the disputed domain name makes the disputed domain name sufficiently distinct from the mark pursuant to Policy ¶ 4(a)(i).  See Broadcom Corp. v. Smoking Domains, FA 137037 (Nat. Arb. Forum Feb. 11, 2003) (finding that the <> domain name was not confusingly similar to the complainant’s BROADCOM mark because “Complainant is not entitled to protection for every usage of the word ‘broad’ in combination with other terms”); see also Kittinger Co. v. Kittinger Collector, AF-0107 (eResolution May 8, 2000) (finding that <> is not identical or confusingly similar to a trademark of the complainant because the use of the complainant's trademark in this domain is purely nominative, the domain name as a whole is descriptive of the respondent's business, and the domain name is unlikely to cause confusion with the complainant's business).


The Panel finds that Policy ¶ 4(a)(i) has not been satisfied.


Rights or Legitimate Interests/ Registration and Use in Bad Faith


In light of Complainant’s failure to establish that the disputed domain name is identical or confusingly similar to Complainant’s mark according to Policy ¶ 4(a)(i), the Panel finds that the remainder of the UDRP Policy analysis is unnecessary.



Having not established all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.





Hon. Ralph Yachnin, Panelist

Justice, Supreme Court, NY (Ret.)


Dated:  October 22, 2007


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