E-Brands Restaurants, LLC v.
Claim Number: FA0801001125679
Complainant is E-Brands Restaurants, LLC (“Complainant”), represented by Jon
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <aquaknox.com>, registered with Domaindoorman, LLC.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Judge Harold Kalina (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on January 2, 2008; the National Arbitration Forum received a hard copy of the Complaint on January 7, 2008.
On January 4, 2008, Domaindoorman, LLC confirmed by e-mail to the National Arbitration Forum that the <aquaknox.com> domain name is registered with Domaindoorman, LLC and that Respondent is the current registrant of the name. Domaindoorman, LLC has verified that Respondent is bound by the Domaindoorman, LLC 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 January 14, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of February 4, 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.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On February 8, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Judge Harold Kalina (Ret.) 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 transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <aquaknox.com> domain name is identical to Complainant’s AQUAKNOX mark.
2. Respondent does not have any rights or legitimate interests in the <aquaknox.com> domain name.
3. Respondent registered and used the <aquaknox.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, E-Brands Restaurants, LLC, owns a service mark registration in the AQUAKNOX mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,322,910 issued February 29, 2000). Complainant’s service mark registration is used in connection with the provision of restaurant services.
Respondent registered the <aquaknox.com> domain name on October 17, 2005. Respondent’s disputed domain name resolves to a website containing links to third-party restaurant related websites.
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 has submitted evidence of rights in the AQUAKNOX mark through registration of the mark with the USPTO. The Panel finds that evidence of a federal trademark or service mark registration sufficiently establishes rights in a mark for purposes of Policy ¶ 4(a)(i). See Men’s Wearhouse, Inc. v. Wick, FA 117861 (Nat. Arb. Forum Sept. 16, 2002) (“Under U.S. trademark law, registered marks hold a presumption that they are inherently distinctive [or] have acquired secondary meaning.”); 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.”).
Complainant contends that Respondent’s <aquaknox.com> domain name is identical to Complainant’s AQUAKNOX
mark. Respondent’s disputed domain name
contains Complainant’s mark in its entirety and adds the generic top-level
domain (“gTLD”) “.com.” The Panel holds
that for the purposes of distinguishing a disputed domain name from a mark, the
use of a gTLD is irrelevant. See Fed’n of Gay Games, Inc. v. Hodgson, D2000-0432 (WIPO June 28, 2000) (finding that
the domain name <gaygames.com> is identical to the complainant's
registered trademark GAY GAMES); see also
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant must establish a prima facie case that Respondent lacks rights or legitimate
interests in order to prevail under the Policy.
However, Complainant fails to make an argument or submit supporting
evidence that Respondent does not have rights or legitimate interests in the <aquaknox.com>
domain name. While the Panel recognizes that the burden of
proof in establishing rights or legitimate interests falls on the Respondent,
Complianant must allege facts that, if true, would establish that Respondent does
not have rights or legitimate interests under Policy ¶ 4(a)(ii). Therefore, the Panel finds that Complainant
has failed to satisfy its burden of establishing Respondent’s lack of rights or
legitimate interests under Policy ¶ 4(a)(ii).
See VeriSign Inc. v. VeneSign
The Panel finds that Complainant has not satisfied Policy ¶ 4(a)(ii).
Similarly, under Policy ¶ 4(a)(iii), Complainant has the burden of showing that Respondent has acted in bad faith in its registration and use of the <aquaknox.com> domain name. In the matter at hand, Complainant has simply made unsupported assertions of Respondent’s intentional attempt to attract Internet users to Respondent’s own site for commercial gain. As a result, in the absence of evidence supporting Complainant’s bald assertions, the Panel finds that Complainant has failed to establish Respondent’s bad faith intent in registering and using the <aquaknox.com> domain name pursuant to Policy ¶ 4(a)(iii). See Commerce LLC v. Hatcher, FA 105749 (Nat. Arb. Forum Apr. 9, 2002) (refusing to transfer the disputed domain name to the complainant, where the complaint did not set forth a cognizable claim of bad faith registration and use but merely relied on allegations of “identicality” and lack of rights and legitimate interests); see also Graman USA Inc. v. Shenzhen Graman Indus. Co., FA 133676 (Nat. Arb. Forum Jan. 16, 2003) (finding that general allegations of bad faith without supporting facts or specific examples do not supply a sufficient basis upon which the panel may conclude that the respondent acted in bad faith); see also Loris Azzaro BV, SARL v. Asterix, D2000-0608 (WIPO Sept. 4, 2000) (“Mere belief and indignation by Complainant that Respondents have registered and are using the Domain Name in bad faith are insufficient to warrant the making of such a finding in the absence of conclusive evidence”).
The Panel finds that Complainant has not satisfied Policy ¶ 4(a)(i).
Having failed to establish all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.
Judge Harold Kalina (Ret.), Panelist
Dated: February 19, 2008
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