Mark Harris v. Nextology, Inc.
Claim Number: FA0802001143815
Complainant is Mark Harris (“Complainant”),
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <harrisdevgrp.com>, registered with Register.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.
Honorable Karl V. Fink (Ret.), as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on February 11, 2008; the National Arbitration Forum received a hard copy of the Complaint on February 11, 2008.
On February 13, 2008, Register.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <harrisdevgrp.com> domain name is registered with Register.com, Inc. and that Respondent is the current registrant of the name. Register.com, Inc. has verified that Respondent is bound by the Register.com, 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 February 27, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 18, 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 March 26, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Karl V. Fink (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. Complainant fails to make an assertion with respect to Policy ¶ 4(a)(i).
2. Respondent does not have any rights or legitimate interests in the <harrisdevgrp.com> domain name.
3. Respondent registered and used the <harrisdevgrp.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Mark Harris, hired Respondent to register the disputed domain name in 2001 on Complainant’s behalf. Complainant does not state what its mark is, or how the <harrisdevgrp.com> domain name relates to this mark.
Respondent registered the <harrisdevgrp.com> domain name on September 11, 2001. Respondent was retained by Complainant to register the disputed domain name on Complainant’s behalf, but instead registered the disputed domain name in Respondent’s name.
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.
Under Policy ¶ 4(a)(i), Complainant is required to establish rights in a mark, either through a registration with a governmental trademark authority, or through the establishment of common law rights acquired through extensive and continuous use of a mark in commerce. In the instant proceeding, Complainant has not alleged rights in any mark, either through a trademark registration or common law rights. As such, the Panel finds that Complainant has not established rights in any mark, and can not satisfy Policy ¶ 4(a)(i). See Weatherford Int’l, Inc. v. Wells, FA 153626 (Nat. Arb. Forum May 19, 2003) (holding that prior UDRP precedent did not support a finding of common law rights in a mark in lieu of any supporting evidence or statements or proof (e.g., business sales figures, revenues, advertising expenditures, number of consumers served, trademark applications or intent-to-use applications)); see also Molecular Nutrition, Inc. v. Network News and Publ’ns, FA 156715 (Nat. Arb. Forum June 24, 2003) (approving of and applying the principles outlined in prior decisions that recognized “common law” trademark rights as appropriate for protection under the Policy “if the complainant can establish that it has done business using the name in question in a sufficient manner to cause a secondary meaning identifiable to Complainant's goods or services”).
The Panel finds that Policy ¶ 4(a)(i) has not been satisfied.
Having failed to satisfy Policy ¶ 4(a)(i), the Panel chooses not to examine Policy ¶ 4(a)(ii).
Having failed to satisfy Policy ¶ 4(a)(i), the Panel chooses not to examine Policy ¶ 4(a)(iii).
Having failed to establish all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.
Accordingly, it is Ordered that the <harrisdevgrp.com> domain name REMAIN with Respondent.
Honorable Karl V. Fink (Ret.), Panelist
Dated: April 4, 2008
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