William Mushi v. Great Thinkers
Claim Number: FA0805001183235
Complainant is William Mushi (“Complainant”), represented by Victoria
M. Brown, of Victoria M. Brown, LLC,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <jamboforums.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.
Louis E. Condon as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
12, 2008, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
June 2, 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 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 name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <jamboforums.com> domain name is identical to Complainant’s JAMBOFORUMS.COM mark.
2. Respondent does not have any rights or legitimate interests in the <jamboforums.com> domain name.
3. Respondent registered and used the <jamboforums.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant previously operated a web page at the website
that resolved from the <jamboforums.com>
domain name. Complainant originally
registered the disputed domain name on
Respondent registered the disputed domain name in his 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.
Preliminary Issue: Outside the Scope of the UDRP
Complainant brought this UDRP claim against Respondent, but the dispute does not clearly fall under the scope of the Policy. Therefore, the Panel denies transfer of the disputed domain name to Complainant for failure to state a claim under the UDRP. See Commercial Publ’g Co. v. EarthComm., Inc., FA 95013 (Nat. Arb. Forum July 20, 2000) (finding that the Policy’s administrative procedure is “intended only for the relatively narrow class of cases of ‘abusive registrations’ . . . The [P]olicy relegates all ‘legitimate disputes’ to the courts”).
Complainant has alleged rights in the JAMBOFORUM.COM mark by providing information indicating that it has filed for registration of the mark with the United States Patent and Trademark Office (“USPTO”) and by including pictures of promotional materials. Complainant, however, gave Respondent use of the disputed domain name registration information, including the password and credit card information. The present dispute involves Respondent’s taking of the disputed domain name from Complainant using confidential information given to him by Complainant. The UDRP does not cover disputes concerning conversion of a disputed domain name where the registration information was freely given to Respondent. See Thread.com, LLC v. Poploff, D2000-1470 (WIPO Jan. 5, 2001) (refusing to transfer the domain name and stating that the ICANN Policy does not apply because attempting “to shoehorn what is essentially a business dispute between former partners into a proceeding to adjudicate cybersquatting is, at its core, misguided, if not a misuse of the Policy”).
Complainant having not established all three elements required under the ICANN Policy, the Panel concludes that relief should be DENIED.
Louis E. Condon Panelist
Dated: June 23, 2008
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