Ravinder Singh v. Manav Kendra
Enterprises Inc.
Claim Number: FA0204000110862
Complainant
is Ravinder Singh, Skelmersdale, UK
(“Complainant”). Respondent is Manav Kendra Enterprises Inc., Tempe, AZ,
USA (“Respondent”).
The
domain name at issue is <fashion.biz>,
registered with R&K Global Business
Services, 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
Harold Kalina (Ret.) as Panelist.
Complainant
has standing to file a Start-up Trademark Opposition Policy (“STOP”) Complaint,
as it timely filed the required Intellectual Property (IP) Claim Form with the
Registry Operator, NeuLevel. As an IP
Claimant, Complainant timely noted its intent to file a STOP Complaint against
Respondent with the Registry Operator, NeuLevel and with the National
Arbitration Forum (the “Forum”).
Complainant
submitted a Complaint to the Forum electronically on April 26, 2002; the Forum
received a hard copy of the Complaint on May 14, 2002.
On
May 20, 2002, a Notification of Complaint and Commencement of Administrative
Proceeding (the “Commencement Notification”), setting a deadline of June 10,
2002 by which Respondent could file a Response to the Complaint, was
transmitted to Respondent in compliance with paragraph 2(a) of the Rules for
the Start-up Trademark Opposition Policy (the “STOP Rules”).
Having
received no Response from Respondent, using the same contact details and
methods as were used for the Commencement Notification, the Forum transmitted
to the parties a Notification of Respondent Default.
On July 9, 2002, pursuant to STOP Rule 6(b), the Forum
appointed Judge Harold Kalina (Ret.)
as the single Panelist.
Having
reviewed the communications records, the Administrative Panel (the “Panel”)
finds that the Forum has discharged its responsibility under Paragraph 2(a) of
the STOP Rules. Therefore, the Panel
may issue its decision based on the documents submitted and in accordance with
the STOP Policy, STOP Rules, the Forum’s STOP Supplemental Rules and any rules
and principles of law that the Panel deems applicable, without the benefit of
any Response from Respondent.
Transfer
of the domain name from Respondent to Complainant.
A.
Complainant
Complainant
asserts that it has a trademark or service mark that is identical to <fashion.biz>.
Complainant
asserts that Respondent has no rights or legitimate interests in the <fashion.biz> domain name.
Complainant
asserts that Respondent registered <fashion.biz>
in bad faith.
B.
Respondent
Respondent failed to submit a Response.
Complainant makes many assertions
about its alleged business called FASHION BUSINESS located in the north west of
the UK. However, Complainant fails to
provide any proof that it does business under the name FASHION, or FASHION
BUSINESS, or that it owns any trademarks or services marks for FASHION. Complainant states in section 5(c) of its
Complaint that it owns a trademark or service mark for “CLTOTHIING,” meanwhile,
omitting what country this mark is registered in and its registration
number. Nowhere does the Complaint
directly assert that Complainant has a trademark or service mark for FASHION,
common law or otherwise. The Complaint
always refers to Complainant’s business as FASHION BUSINESS, not FASHION, and
fails to provide any evidence of secondary meaning associating the alleged
FASHION mark with Complainant’s goods or services.
Respondent registered the disputed <fashion.biz> domain name on March
27, 2002.
Paragraph 15(a) of the STOP 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 the Complainant's undisputed
representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the STOP Rules
and draw such inferences it considers appropriate pursuant to paragraph 14(b)
of the STOP Rules.
Paragraph
4(a) of the STOP Policy requires that the Complainant must prove each of the
following three elements to obtain an order that a domain name should be
transferred:
(1)
the domain name is identical to a trademark or
service mark in which the Complainant has rights; and
(2) the Respondent has no rights or legitimate interests
in respect of the domain name; and
(3)
the domain name has been registered or is being used in bad faith.
Due
to the common authority of the ICANN policy governing both the Uniform Domain
Name Dispute Resolution Policy (“UDRP”) and these STOP proceedings, the Panel
will exercise its discretion to rely on relevant UDRP precedent where
applicable.
Under
the STOP proceedings, a STOP Complaint may only be filed when the domain name
in dispute is identical to a trademark or service mark for which a Complainant
has registered an Intellectual Property (IP) claim form. Therefore, every STOP proceeding necessarily
involves a disputed domain name that is identical to a trademark or service
mark in which a Complainant asserts rights.
The existence of the “.biz” generic top-level domain (gTLD) in the
disputed domain name is not a factor for purposes of determining that a
disputed domain name is not identical to the mark in which the Complainant
asserts rights.
Complainant
has failed to provide any proof that it owns a trademark or service mark for
FASHION. Furthermore, Complainant has
failed to provide any evidence of common law rights in the FASHION mark. FASHION is a generic term, therefore
Complainant must provide evidence of a substantial secondary meaning
associating the FASHION mark to Complainant’s goods or services in order to
establish that it has exclusive rights to the term. Complainant has failed to do that here, and therefore has failed
to prove that it has rights in a mark identical to the <fashion.biz> domain name pursuant to STOP Policy ¶ 4(a)(i). See
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).
Respondent
has failed to come forward, and as a result there is insufficient evidence for
the Panel to proceed in an evaluation of Respondent’s rights in relation to the
<fashion.biz> domain name in
accordance with the STOP Policy.
Having failed to establish a necessary
element required under the Start-up Trademark Opposition Policy, the Panel
concludes that relief shall be hereby denied.
Accordingly, it is Ordered that the
Complaint be dismissed. There are no further challenges pending
against this domain name under the STOP Policy.
Judge Harold Kalina (Ret.), Panelist
Dated: July 18, 2002
Click Here to return
to the main Domain Decisions Page.
Click Here to return to our Home Page