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,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <kinmovies.com>, 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
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 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.
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 <kinmovies.com> domain name is confusingly similar to Complainant’s MR. SKIN mark.
2. Respondent does not have any rights or legitimate interests in the <kinmovies.com>domain name.
3. Respondent registered and used the <kinmovies.com> 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.
Respondent registered the <kinmovies.com>
domain name on
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.
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
Respondent’s <kinmovies.com> 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 <broadcommunications.com> 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 <kittingercollector.com> 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.
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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