national arbitration forum




Holland Pools & Spas, Inc. v. Attn: INC

Claim Number: FA0810001228288



Complainant is Holland Pools & Spas, Inc. (“Complainant”), represented by Bridget H. Labutta, of Allen, Dyer, Doppelt, Milbrath & Gilchrist, P.A., Florida, USA.  Respondent is Attn: INC (“Respondent”), Utah, USA.



The domain name at issue is <>, registered with, 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.


James A. Carmody, Esq., as Panelist.



Complainant submitted a Complaint to the National Arbitration Forum electronically on October 7, 2008; the National Arbitration Forum received a hard copy of the Complaint on October 8, 2008.


On October 8, 2008,, Inc. confirmed by e-mail to the National Arbitration Forum that the <> domain name is registered with, Inc. and that Respondent is the current registrant of the name., Inc. has verified that Respondent is bound by the, 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 October 20, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of November 10, 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 by e-mail.


Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.


On November 12, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A. Carmody, Esq.,  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 <> domain name is confusingly similar to Complainant’s HOLLAND POOLS AND SPAS mark.


2.      Respondent does not have any rights or legitimate interests in the <> domain name.


3.      Respondent registered and used the <> domain name in bad faith.


B.  Respondent failed to submit a Response in this proceeding.



Complainant, Holland Pools & Spas, Inc., has operated under the HOLLAND POOLS AND SPAS mark since 1998 and operates the website resolving from the <> domain name in connection with its custom pool and spa construction business in Central Florida.


Respondent registered the <> domain name on January 14, 2008.  Respondent was using the disputed domain name to redirect Internet users to Complainant’s website resolving from the <> domain name  until September 9, 2008 when the disputed domain name was used to redirect Internet users to another pool-industry competitor’s website resolving from the <> 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.


Identical and/or Confusingly Similar


Complainant claims common law rights to the HOLLAND POOLS AND SPAS mark.  However, since the Panel finds that Complainant’s mark is not identical or confusingly similar to the <> domain name, the Panel declines to evaluate whether Complainant has proven such common law rights to the mark pursuant to Policy ¶ 4(a)(i). 


The <> domain name incorporates the generic terms “pools and spas” from Complainant’s mark.  “Pools and spas” are generic terms used by businesses selling and building pools and spas.  The dominant element of the disputed domain name is “champagne” and the dominant element of the mark is HOLLAND.  The Panel finds that the <> domain name is not identical or confusingly similar to Complaint’s alleged HOLLAND POOLS AND SPAS mark pursuant to Policy ¶ 4(a)(i) because the overall impression of the domain name is not similar to Complainant’s mark and the domain name is different and not likely to confuse the public.  See Broadcom Corp. v. Smoking Domains, FA 137037 (Nat. Arb. Forum Feb. 11, 2003) (finding that the <> domain name was not confusingly similar to the complainant’s BROADCOM mark because the overall impression of the domain name was not similar to the complainant's mark and the domain name was “different, generic, and not likely to confuse the public”); see also FloridaFirst Bank v. Carlson, FA 143677 (Nat. Arb. Forum Apr. 10, 2003) (holding that as the complainant disclaimed the exclusive right to use “BANK”, apart from the FLORIDAFIRST BANK mark, the validity of the mark was to be determined by viewing the trademark as a whole and not just the words “FloridaFirst.” Hence, when viewing the complainant’s FLORIDAFIRST BANK mark as a whole, the respondent’s <> domain name was not confusingly similar to the registered mark). 


The Panel finds that Complainant failed to satisfy Policy ¶ 4(a)(i).


Rights or Legitimate Interests and Registration and Use in Bad Faith


Since the Panel concludes that Complainant has not satisfied Policy ¶ 4(a)(i), the Panel in its discretion declines to analyze the other two elements of the Policy.  See Creative Curb v. Edgetec Int’l Pty. Ltd., FA 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 Dec. 28, 2006) (deciding not to inquire into the respondent’s rights or legitimate interests or its registration and use in bad faith where the complainant could not satisfy the requirements of Policy ¶ 4(a)(i)).



Having failed to establish all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.


Accordingly, it is Ordered that the <> domain name will remain with Respondent.




James A. Carmody, Esq., Panelist

Dated:  November 26, 2008



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