Leah Kando v. Elms Web Services, Inc
Claim Number: FA0805001192082
Complainant is Leah Kando (“Complainant”), represented by Louis
Paz Winner, of Seiller Waterman, LLC,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <leahkando.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
29, 2008, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
June 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.
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 <leahkando.com> domain name is identical to Complainant’s LEAH KANDO mark.
2. Respondent does not have any rights or legitimate interests in the <leahkando.com> domain name.
3. Respondent registered and used the <leahkando.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Leah Kando, alleges that she uses the LEAH KANDO mark, Complainant’s name, in the modeling, entertainment, and VIP companion industry.
Respondent, Elms Web
Services, Inc, registered the <leahkando.com> domain 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.
Complainant has not presented evidence of trademark
registration with any governmental authority for her LEAH KANDO mark. However, trademark registration is not
dispositive provided Complainant can establish common law rights in its
mark. In SeekAmerica Networks Inc. v. Masood, D2000-0131 (WIPO
However in this case, Complainant has not met this burden. Complainant has alleged use of the LEAH KANDO mark but failed to provide evidence to establish how long Complainant has utilized the mark in the modeling industry or present the Panel with any documentation of her use, which could establish the secondary meaning requisite in acquiring common law trademark rights. Therefore, due to the failure to produce evidence establishing secondary meaning, the Panel finds that Complainant has not met its burden of proof for establishing common law rights in the mark pursuant to Policy ¶ 4(a)(i). See Weatherford Int’l, Inc. v. Wells, FA 153626 (Nat. Arb. Forum May 19, 2003) (“Although Complainant asserts common law rights in the WELLSERV mark, it failed to submit any evidence indicating extensive use or that its claimed mark has achieved secondary source identity . . . [Complainant’s claim that it is well known] is a finding that must be supported by evidence and not self-serving assertions.”); see also Molecular Nutrition, Inc. v. Network News & Publ’ns, FA 156715 (Nat. Arb. Forum June 24, 2003) (finding that the complainant failed to establish common law rights in its mark because mere assertions of such rights are insufficient without accompanying evidence to demonstrate that the public identifies the complainant’s mark exclusively or primarily with the complainant’s products).
Complainant has not satisfied Policy ¶ 4(a)(i),
therefore, the Panel chooses to dismiss the Complaint without prejudice. In Cluett, Peabody & Co., Inc. v.
The Panel finds that Policy ¶ 4(a)(i) has not been satisfied.
As the Panel finds Policy ¶ 4(a)(i)
has not been satisfied, it is unnecessary to examine Policy ¶¶ 4(a)(ii) and
(iii). See Creative Curb v. Edgetec Int’l Pty. Ltd.,
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 Hugo Daniel Barbaca
Bejinha v. Whois Guard Protected, FA 836538 (Nat. Arb. Forum
Complainant having failed to establish all three elements required under the ICANN Policy, the Panel concludes that complaint should be DISMISSED WITHOUT PREJUDICE.
Louis E. Condon, Panelist
Dated: July 2, 2008
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