Black Oak Computers Inc v. Blue Pyramid Gen. Trading
Claim Number: FA0801001139914
Complainant is Black Oak Computers Inc (“Complainant”), represented by Phil
REGISTRAR AND DISPUTED DOMAIN NAME
The domain names at issue are <strong-vpn.com>, <vpnstrong.com>, and <strongvpns.com>, registered with Godaddy.com, 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.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On February 13, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 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 email@example.com, firstname.lastname@example.org, and email@example.com 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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <strong-vpn.com>, <vpnstrong.com>, and <strongvpns.com> domain names are identical/confusingly similar to Complainant’s <strongvpn.com> domain name.
2. Respondent does not have any rights or legitimate interests in the <strong-vpn.com>, <vpnstrong.com>, and <strongvpns.com> domain names.
3. Respondent registered and used the <strong-vpn.com>, <vpnstrong.com>, and <strongvpns.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Black Oak Computers Inc., provides consumers with “Virtual Private Network” accounts globally for connectivity to offices and private residences.
Respondent registered each of
the <strong-vpn.com>, <vpnstrong.com>,
and <strongvpns.com> domain names 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 does not assert rights in a trademark, shows no evidence of a trademark or service mark registration with any trademark authority, or evidence of common law rights in a mark. Under Policy ¶ 4(a)(i), a complainant must first establish rights in a mark as a threshold issue before the Panel can determine whether a respondent’s domain name is confusingly similar to a mark. Because Complainant failed to show evidence of either common law rights or a trademark registration, the Panel finds that Complainant has failed to satisfy Policy ¶ 4(a)(i). See Powrachute Inc. v. Buckeye Indus., AF-0076 (e-Resolution, May 30, 2000) (dismissing a complaint where the complainant failed to contend, provide evidence, or give arguments to the effect that it had either a registered trademark or service mark in POWRACHUTE or any similar name, or that it had a common law trademark in the name); see also GLB Servicos Interativos S.A. v. Ultimate Search Inc., D2002-0189 (WIPO May 29, 2002) (holding that the complainant’s mere possession of a domain name registration, without demonstrating any common-law or registered rights in a mark, was insufficient to bring a claim under the UDRP).
Because Complainant has failed to show evidence of rights in a mark, the Panel finds that Complainant has failed to satisfy the first element of the Policy. The Panel chooses not to consider whether Respondent has rights or legitimate interests in the <strong-vpn.com>, <vpnstrong.com>, and <strongvpns.com> domain names under Policy ¶ 4(a)(ii) or whether Respondent has exhibited bad faith registration and use of the disputed domain names under Policy ¶ 4(a)(iii). See Creative Curb v. Edgetec Int’l Pty. Ltd., FA 116765 (Nat. Arb. Forum Sept. 20, 2002) (finding that because the complainant must prove all three elements under the Policy, the complainant’s failure to prove one of the elements makes further inquiry into the remaining element unnecessary); see also 01059 GmbH v. VARTEX Media Mktg. GmbH/Stefan Heisig, D2004-0541 (WIPO Sept. 10, 2004) (holding that if the complainant does not satisfy Policy ¶ 4(a)(i) by showing it has rights in a mark, the panel need not consider whether the respondent has rights or legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii) or whether it registered and is using the disputed domain name in bad faith under Policy ¶ 4(a)(iii)).
The Panel finds that Complainant has failed to satisfy Policy ¶ 4(a)(i).
Having failed to establish all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.
James A. Carmody, Esq., Panelist
Dated: March 24, 2008
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