Landers Brothers Auto Group v. mga enterprises limited
Claim Number: FA0708001067455
Complainant is Landers Brothers Auto Group (“Complainant”),
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <landershonda.com>, registered with Godaddy.com, 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 22, 2007; the National Arbitration Forum received a hard copy of the Complaint August 22, 2007.
On August 23, 2007, Godaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <landershonda.com> domain name is registered with Godaddy.com, Inc. and that Respondent is the current registrant of the name. Godaddy.com, Inc. verified that Respondent is bound by the Godaddy.com, 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 September 5, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 25, 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@landershonda.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On October 1, 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 does not make any assertions with respect to the three-pronged burden under the Policy.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Landers Brothers Auto Group, sells new and
pre-owned Honda vehicles, as well as vehicles made by other manufacturers. Complainant operates under the name “Landers
Honda,” and uses this name to advertise its business in two locations in
Respondent, mga enterprises limited, registered the <landershonda.com> domain name November 15, 2005.
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.”).
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 made no assertions with respect to this element of the Policy.
Therefore, the Panel finds that Complainant did not satisfy Policy ¶ 4(a)(i).
Complainant alleges that Respondent does not operate any business under the disputed domain name, and is therefore cybersquatting. While Complainant may well be correct, Complainant did not support this allegation with any evidence or supporting authority, and did not allege how Respondent’s actions violate any sections of the UDRP Policy.
Therefore, the Panel finds that Complainant failed to satisfy Policy ¶ 4(a)(ii).
Complainant alleges that the disputed domain name “was registered by an individual in order to sell to the highest bidder.” However, Complainant offers no evidence that this assertion is true, nor does Complainant state how any of Respondent’s conduct violates the UDRP Policy in any way.
Therefore, the Panel finds that Complainant did not satisfy Policy ¶ 4(a)(iii).
Having failed to establish any of the three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.
Hon. Carolyn Marks Johnson, Panelist
Dated: October 15, 2007.
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