Dry Force Inc. v. Jerry
Davis
Claim Number: FA0807001213759
PARTIES
Complainant is Dry Force Inc. (“Complainant”), represented by Alan
L. Edwards, of Kunzler & McKenzie,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <dryforce.com>, registered with Godaddy.com,
Inc.
PANEL
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.
James A. Carmody, Esq., as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
electronically on
On
On July 11, 2008, a Notification
of Complaint and Commencement of Administrative Proceeding (the “Commencement
Notification”), setting a deadline of July 31, 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@dryforce.com by e-mail.
A timely Response was received and determined to be complete on
On
RELIEF SOUGHT
Complainant requests that the domain name be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant makes the following assertions:
1. Respondent’s <dryforce.com>, the domain name at issue, is identical or confusingly similar to Complainant’s DRY FORCE mark.
2. Respondent does not have any rights or legitimate interests in the domain name at issue.
3. Respondent registered and used the domain name at issue in bad faith.
B. Respondent makes the following assertions:
1. Respondent does not dispute that the domain name at issue is identical or confusingly similar to Complainant’s mark.
2. Respondent claims rights and legitimate interests in the DRY FORCE mark and in the domain name at issue.
3. Respondent asserts that it did not register or use the domain name at issue in bad faith.
FINDINGS
Complainant
has rights in the DRY FORCE mark through registration with the United States
Patent and Trademark Office (“USPTO”) (Reg. No. 3,007,106 issued
Rather, Respondent chronicles his own rights,
use and legitimate interests in the domain name at issue. Respondent
asserts that the disputed domain name is used as part of its business
model. Respondent uses the disputed
domain name to host e-mail addresses for its employees and asserts plans to use
it for a website in the future.
Apparently, Respondent is in the business of repairing water damage to
carpets and other items in connection with insurance claims and re-branded
itself as DRY FORCE in 2006. Respondent
does business as Dry Force, LLC and claims to be known by the domain name at
issue which it uses daily to communicate with employees.
There
is disputed sworn evidence as to whether the Respondent attempted to sell the domain name at issue to Complainant for more
than out of pocket costs associated with the
domain.
DISCUSSION
Paragraph 15(a) of the Rules for Uniform Domain
Name Dispute Resolution Policy (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.”
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 the Respondent
is identical or confusingly similar to a trademark or service mark in which the
Complainant has rights;
(2) the 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
enjoys rights in the DRY FORCE mark through registration with the United States
Patent and Trademark Office (“USPTO”) (Reg. No. 3,007,106 issued
Respondent
does not dispute Complainant’s rights in the DRY FORCE mark.
The
Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Respondent is in the
business of repairing water damage to carpets and other items in connection
with insurance claims and re-branded itself as DRY FORCE in 2006. Respondent does business as Dry Force, LLC
and claims to be known by the domain name at issue which it uses daily to
communicate with employees.
Further, Respondent appears to be
commonly known by the DRY FORCE name. Respondent uses the disputed domain name
to host e-mail addresses for its employees and asserts plans to use it for a
website in the future. Such evidence of
use presents a bona fide offering of goods or services under Policy ¶
4(c)(i). See Smart Design LLC v. Hughes, D2000-0993
(WIPO Oct. 18, 2000) (finding rights and legitimate interests in the domain
name where the respondent sought to develop a bona fide business use for
the domain name); see also IG Index PLC
v. Index Trade, D2000-1124 (WIPO Oct. 16, 2000) (finding that the
respondent has rights in the domain name because the respondent’s claimed use
of the domain name is a “plausible explanation” to which the panel must give
weight).
It appears that Respondent acquired the domain name at issue from a third party in September, 2007 in a negotiated transaction for $1,500 plus commissions. Presumably, Complainant could have done the same.
The Panel finds that Policy ¶ 4(a)(ii) has not been satisfied.
Having found that Respondent has rights in legitimate interests in the domain name at issue, it is not necessary to decide whether the Respondent registered and used the domain at issue in bad faith. Due to disputed factual and legal issues in this case which are beyond the appropriate application of the UDRP, the parties might more effectively avail themselves of the remedies of another forum.
DECISION
Having failed to establish all three elements required under the ICANN
Policy, the Panel concludes that relief shall be DENIED.
James A. Carmody, Esq., Panelist
Dated: August 14, 2008
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