Michael A. King v. Joey Cambria
Claim Number: FA0712001118407
Complainant is Michael A. King (“Complainant”), represented by Scott
W. Kelley, of Kelly Lowry & Kelley LLP,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <kayakfishingmagazine.net>, registered with Wild West Domains, 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.
David A. Einhorn appointed as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on December 7, 2007; the National Arbitration Forum received a hard copy of the Complaint on December 11, 2007.
On December 7, 2007, Wild West Domains, Inc. confirmed by e-mail to the National Arbitration Forum that the <kayakfishingmagazine.net> domain name is registered with Wild West Domains, Inc. and that the Respondent is the current registrant of the name. Wild West Domains, Inc. has verified that Respondent is bound by the Wild West Domains, 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 December 17, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of January 7, 2008 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.
A timely Response was received and determined to be complete on January 2, 2008.
A timely Additional Submission from Complainant was received and determined to be complete on January 7, 2008.
On January 10, 2008, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed David A. Einhorn as Panelist.
Complainant requests that the domain name be transferred from Respondent to Complainant.
Complainant alleges as follows:
Respondent, who is not represented by counsel, did not present arguments pertinent to this Panel’s decision in this case.
C. Additional Submissions
Neither does Complainant’s Additional Submission provide arguments or information pertinent to this decision.
FINDINGS AND DISCUSSION
Paragraph 15(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (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.”
Paragraph 4(a) of the Policy requires that the 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 the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(2) the 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.
The threshold issue here is whether Complainant has
established a protectable right in the mark KAYAK FISHING. Here, Complainant amended its original application
for registration in the Principal Register to apply for registration of that
mark on the Supplemental Register. The
application for registration on the Supplemental Register has an effective
filing date of March 22, 2004 (the date of filing of the Amendment to Allege Use). The Supplemental Register is for descriptive
marks for which secondary meaning has not been proven. Rodale,
Complainant also claims to have acquired common law rights in the mark KAYAK FISHING. However, Complainant has provided no other information or evidence to support its bare assertion that this mark has acquired secondary meaning. Absent any proof of secondary meaning, this Panel cannot conclude that Complainant has a protectable right in the mark KAYAK FISHING. See Molecular Nutrition, Inc. v. Network News & Publ’g, FA 156715 (Nat. Arb. Forum June 24, 2003) (Complainant in that case had alleged that it had been selling its products over the Internet for over two years. However, the panel found no protectable common law rights in the mark since complainant had supplied the panel with no documentation concerning the volume and scope of such sales).
For the foregoing reasons, this Panel finds that Complainant has failed to prove that the disputed domain name is identical or confusingly similar to a mark in which Complainant has rights.
Since Complainant has failed to satisfy paragraph 4(a)(i) of the Policy, the Panel need not examine whether Complainant would prevail as to the criteria in paragraphs 4(a)(ii) and 4(a)(iii).
Having failed to establish the first element required under the ICANN Policy, the Panel concludes that relief shall be DENIED.
Accordingly, it is Ordered that the <kayakfishingmagazine.net> domain name remain registered to Respondent.
David A. Einhorn, Panelist
Dated: January 24, 2008