Claim Number: FA0806001202940
Complainant is Missoula Federal Credit Union (“Complainant”), represented by Shane
A. Vannatta, of WORDEN THANE P.C.,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <missoulafederalcreditunion.com>, registered with Rebel.com Corp.
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.
James A. Crary as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on June 6, 2008; the National Arbitration Forum received a hard copy of the Complaint on June 9, 2008.
On June 11, 2008, Rebel.com Corp. confirmed by e-mail to the National Arbitration Forum that the <missoulafederalcreditunion.com> domain name is registered with Rebel.com Corp. and that Respondent is the current registrant of the name. Rebel.com Corp. has verified that Respondent is bound by the Rebel.com Corp. 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 June
17, 2008, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
July 7, 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 postmaster@missoulafederalcreditunion.com
by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On July 14, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A Crary 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. Respondent’s <missoulafederalcreditunion.com> domain name is confusingly similar to Complainant’s MISS WEB WWW.MISSOULAFCU.ORG mark.
2. Respondent does not have any rights or legitimate interests in the <missoulafederalcreditunion.com> domain name.
3. Respondent registered and used the <missoulafederalcreditunion.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Missoula Federal Credit Union, is a
federally-chartered credit union located in
Respondent registered the <missoulafederalcreditunion.com> domain name on July 27, 2004. The disputed domain name resolves to a website that contains various links to third-party websites, some of which are direct competition with Complainant, as well as to Complainant’s website.
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 established rights in the MISS WEB WWW.MISSOULAFCU.ORG
mark for the purposes of Policy ¶ 4(a)(i). The mark was cancelled under Section 8 of the
Trademark Act on February 16, 2008. See Game X Change, Inc. v. Modern Empire Internet Ltd., FA 1155839 (Nat. Arb. Forum, May 6,
2008) (finding that where the complainant’s first trademark had lapsed, the
complainant had no rights in its previously registered mark). However, Complainant need not hold a
trademark registration to establish rights.
Complainant may establish common law rights in the mark through
secondary meaning. See
Therefore, the Panel finds that Policy ¶ 4(a)(i) has not been satisfied.
Because Complainant has not satisfied Policy ¶ 4(a)(i), discussion of Policy ¶¶ 4(a)(ii) and (iii) is not
necessary.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.
Accordingly, it is Ordered that the <missoulafederalcreditunion.com> domain name REMAIN with Respondent.
James A Crary, Panelist
Dated: July 28, 2008
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