Empire Home Services, LLC v. Carol Bryan
a/k/a Empire Home Services
Claim Number: FA0208000117871
PARTIES
Complainant
is Empire Home Services, LLC,
Lincolnwood, IL (“Complainant”) represented by Stephen A. Cohen, of Marks,
Marks and Kaplan, Ltd. Respondent
is Carol Bryan a/k/a Empire Home Services, Tampa, FL (“Respondent”).
REGISTRAR AND DISPUTED DOMAIN NAME
The
domain name at issue is <empirehomeservices.com>,
registered with Register.com, Inc.
PANEL
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.
Sandra
Franklin as Panelist.
PROCEDURAL HISTORY
Complainant
submitted a Complaint to the National Arbitration Forum (the “Forum”)
electronically on August 6, 2002; the Forum received a hard copy of the
Complaint on August 7, 2002.
On
August 22, 2002, Register.com, Inc. confirmed by e-mail to the Forum that the
domain name <empirehomeservices.com>
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
September 5, 2002, a Notification of Complaint and Commencement of
Administrative Proceeding (the “Commencement Notification”), setting a deadline
of September 25, 2002 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 postmaster@empirehomeservices.com
by e-mail.
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
October 16, 2002, pursuant to Complainant’s request to have the dispute decided
by a single-member Panel, the Forum appointed Sandra Franklin as 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 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 Forum’s Supplemental Rules and any rules and
principles of law that the Panel deems applicable, without the benefit of any
Response from Respondent.
RELIEF SOUGHT
Complainant
requests that the domain name be transferred from Respondent to Complainant.
PARTIES’ CONTENTIONS
A.
Complainant
The
<empirehomeservices.com>
domain name is identical to the common law EMPIRE and EMPIRE HOME SERVICES
trademarks, which Complainant holds rights in.
Respondent
has no rights or legitimate interests in the <empirehomeservices.com> domain name.
Respondent
registered and used the <empirehomeservices.com>
domain name in bad faith.
B.
Respondent
Respondent has failed to submit a
Response in this proceeding.
FINDINGS
Complainant claims to have common law
trademark rights in the EMPIRE and EMPIRE HOME SERVICES marks. Complainant contends that “[t]he goods and
services with which the marks are used an will in the future be used [are as
follows]: Selling and providing home
carpeting, window treatments, replacement windows and siding in the following
states: Illinois, California,
Wisconsin, Michigan, Pennsylvania, New Jersey, Massachusetts, New York, Florida,
Washington, Maryland, Connecticut, New Hampshire, Georgia and Indiana…, as well
as other states not yet determined.”
Complainant sent a cease and desist
letter to Respondent via regular mail, certified mail and email on June 6,
2002. Respondent never replied to
Complainant’s communication attempts.
Respondent registered the <empirehomeservices.com> domain
name on May 3, 2002.
DISCUSSION
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 the 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.
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 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.
Identical and/or Confusingly Similar
In order to have standing it is paramount
for Complainant to establish rights in a trademark or service mark that is
identical or confusingly similar to the subject domain name. Complainant alleges that it has common law
trademark rights in the EMPIRE and EMPIRE HOME SERVICES marks. Complainant, however, merely alleges common
law rights without providing supportive evidence that is reliable, credible and
admissible. Complainant provides no
date of first use, or any evidence demonstrating the use of the mark in
commerce. Thus, Complainant has not
sufficiently demonstrated its rights in the EMPIRE or EMPIRE HOME SERVICES
marks. See TotalFinaElf
E&P USA, Inc. v. Farnes, NAF 117028 (Nat. Arb. Forum Sept. 16 2002)
(finding that in order to bring a claim under the Policy, Complainant must
first establish a prima facie case. Complainant’s initial burden is to
provide proof of “valid, subsisting rights in a mark that is similar or
identical to the domain name in question”); see also Powrachute Inc. v. Buckeye Indus.,
AF-0076 (e-Resolution, May 30, 2000) (dismissing a Complaint where 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. The only evidence
provided, that it was incorporated under the name, is insufficient to create a
trademark).
Furthermore, since Complainant has
failed to establish standing with its unsupportive claim of common law
trademark rights, the Panel need not go beyond Policy ¶ 4(a)(i) to determine
any other issues. It is worth noting,
however, that Complainant’s Policy ¶ 4(a)(ii) portion of the Complaint is
equally insufficient, because Complainant merely restates Policy ¶¶ 4(c)(i) through
(iii). Complainant provides no factual
basis for Respondent’s lack of rights or legitimate interests and therefore
Complainant makes no relevant argument under the Policy. See Lush LTD v. Lush Environs, FA 96217 (Nat. Arb. Forum Jan. 13, 2001) (finding that
even when Respondent does file a Response, Complainant must allege facts, which
if true, would establish that Respondent does not have any rights or legitimate
interests in the disputed domain name); see also Creative Curb v. Edgetec
Int’l Pty. Ltd., FA 116765 (Nat. Arb. Forum Sept. 20, 2002) (finding that
because Complainant must prove all three elements under the Policy,
Complainant’s failure to prove one of the elements makes further inquiry into
the remaining element unnecessary).
Accordingly, the Panel finds that
Complainant has not sufficiently complied with the requirements of Policy ¶
4(a)(i).
DECISION
Complainant has failed to comply with the
requirements of Policy ¶ 4(a)(i).
Therefore, the Complaint is DENIED and Complainant shall
not be administered its requested relief.
The Panel finds that the <empirehomeservices.com> domain
name SHALL NOT be transferred.
Sandra Franklin, Panelist
Dated:
October 22, 2002
Click Here to
return to the main Domain Decisions Page.
Click
Here to return to our Home Page