AMP Floracel v. Jean
Claim Number: FA0810001229299
Complainant is AMP Floracel ("Complainant"),
represented by Cindy Herd, of AMP Floracel,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <ampfloracel.biz>, 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.
David A. Einhorn appointed as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on October 14, 2008; the National Arbitration Forum received a hard copy of the Complaint on October 14, 2008.
On October 14, 2008, Godaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <ampfloracel.biz> domain name is registered with Godaddy.com, Inc. and that Respondent is the current registrant of the name. Godaddy.com, Inc. has verified that Respondent is bound by the Godaddy.com, 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 22, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of November 12, 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.
A timely Response was received and determined to be complete on November 12, 2008.
An additional submission from Complainant was received after the deadline for submission.
On November 21, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed David A. Einhorn as Panelist.
Complainant requests that the domain name be transferred from Respondent to Complainant.
Complainant alleges as follows:
(1) Complainant owns the trademark AMP Floracel. Complainant argues that Respondent's domain <ampfloracel.biz> is confusingly similar to its mark.
(2) Respondent has no rights or legitimate interests with respect to this domain name.
(3) The domain name has been registered and is being used in bad faith.
Respondent argues that it is legitimately using this site to criticize Complainant's product. Respondent also argues that a disclaimer in the website negates any potential consumer confusion.
C. Additional Submissions
Complainant's additional submission was received after the deadline for submissions and is not being considered.
FINDINGS AND 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.
The threshold issue here is whether Complainant has established a protectable right in the mark AMP FLORACEL. Complainant has submitted papers showing the filing of a federal trademark application for FLORACEL by CCH Nutrition Corporation ("CCH"). However, Complainant AMP Floracel has not established nor even alleged an assignment of rights to such mark from CCH to AMP Floracel. Neither has Complainant otherwise alleged why AMP Floracel has any rights to CCH's mark. Furthermore, the CCH trademark application is for the mark FLORACEL, not for the mark AMP FLORACEL.
To the extent that Complainant's Complaint can be construed as alleging common law rights to the mark AMP FLORACEL, it should be noted that Complainant has not alleged that this mark has acquired secondary meaning. Absent any proof of secondary meaning, this Panel cannot conclude that Complainant has any protectable common law rights to the mark AMP FLORACEL. See DotNetNuke Corp. v. Namebubble, LLC, FA 1180949 (Nat. Arb. Forum June 18, 2008) (holding in favor of the respondent because the complainant had provided no information or evidence to demonstrate secondary meaning). See also U.S. Fire Arms Mfg. Co. v. Salvia Corp., FA 612350 (Nat. Arb. Forum Feb. 1, 2006) ("The type of evidence generally required to support a finding of common law rights in a mark includes business sales figures, revenue, advertising expenditures, number of consumers served, and evidence that there is a strong identification of the mark with Complainant's goods or services").
For the foregoing reasons, the Panel finds that Complainant has failed to prove that the disputed domain name is identical or confusingly similar to a mark in which Complainant has rights.
Since Complainant has failed to satisfy paragraph 4(a)(i) of the Policy, the Panel need not examine whether Complainant would prevail as to the criteria in paragraphs 4(a)(ii) and 4(a)(iii).
Having failed to establish the first element required under the ICANN Policy, the Panel concludes that relief shall be DENIED.
Accordingly, it is Ordered that the <ampfloracel.biz> domain name remain registered to Respondent.
David A. Einhorn,
Dated: December 8, 2008
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