Creative Imaginations, LLC v.
CKV c/o Domain Administrator
Claim Number: FA0810001230190
PARTIES
Complainant is Creative Imaginations, LLC (“Complainant”), represented by Donald
E. Morris, of Dozier Internet Law, PC, Virginia,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <creativeimaginations.com>,
registered with Nameview, Inc.
PANEL
The undersigned certify that they have acted independently and
impartially and to the best of their knowledge have no known conflict in
serving as Panelists in this proceeding.
David A. Einhorn, Esq., Joel M. Grossman, Esq. and James A. Carmody,
Esq., (Chair) as Panelists.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
electronically on October 21, 2008; the
National Arbitration Forum received a hard copy of the Complaint on October 21, 2008.
On October 30, 2008, Nameview, Inc. confirmed by e-mail to the
National Arbitration Forum that the <creativeimaginations.com> domain
name is registered with Nameview, Inc.
and that Respondent is the current registrant of the name. Nameview, Inc.
has verified that Respondent is bound by the Nameview,
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 November 3, 2008, a
Notification of Complaint and Commencement of Administrative Proceeding (the
“Commencement Notification”), setting a deadline of November 24, 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@creativeimaginations.com
by e-mail.
A timely Response was received and determined to be complete on November 24, 2008.
On December 1, 2008, Complainant and Respondent jointly filed their
“Joint Request to Stay the Administrative Proceeding.” On December 1, 2008, the National Arbitration
Forum granted this Request for a period of forty-five days until January 15,
2009 pursuant to Supplemental Rule 6(b)(i).
On January 14, 2009, Complainant filed its “Request to Continue the
Administrative Proceeding.” On January
14, 2009, the National Arbitration Forum thereby granted this Request, and the
administrative proceeding resumed.
On January 23, 2008, pursuant to Respondent’s
request to have the dispute decided by a three-member Panel, the National
Arbitration Forum appointed David A. Einhorn, Esq., Joel M. Grossman,
Esq. and James A. Carmody, Esq., (Chair) as Panelists.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant makes the following assertions:
1. Respondent’ <creativeimaginations.com> domain name, the domain name at issue, is confusingly similar to Complainant’s CREATIVE IMAGINATIONS 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 denies that the domain name is identical or confusingly similar to a mark in which Complainant has exclusive rights and asserts that the domain name at issue is composed of generic terms.
2. Respondent claims rights and legitimate interests in the domain name at issue.
3. Respondent denies that it has registered or used the domain name at issue in bad faith.
4. Respondent asks the Panel to find that Complainant is guilty of reverse domain name hijacking.
FINDINGS
Complainant is the owner of the trademark
CREATIVE IMAGINATIONS which it succeeded in registering with the USPTO on
October 10, 2006 as Registration Number 3,153,435. In the application to register, Complainant
claimed first use and first use in commerce of January 1, 1986. The use is to identify Complainant’s products
including adhesive stickers and specialty papers of various types. There is no offering of evidence that
Complainant has held a common law trademark in CREATIVE IMAGINATIONS at any
time or that the mark had achieved secondary meaning in the mind of the public
prior to registration.
Complainant argues that Respondent’s <creativeimaginations.com>
domain is identical or confusingly
similar to its CREATIVE IMAGINATIONS mark and notes that Respondent is not
commonly know by the domain name at issue and has not been licensed or otherwise
authorized to use Complainant’s registered trademark. Finally, Complainant asserts that Respondent
registered and is using the domain name at issue in bad faith for financial
gain by serving to redirect Internet users who are searching for Complainant’s
mark to Respondent’s website which, in turn, displays advertisements for the
goods and services of various third-party suppliers. Complainant does not appear to claim that
those third-party suppliers are its competitors.
Respondent notes that it
registered the <creativeimaginations.com>
domain in May of 2001, nearly four years prior to the application date to
register CREATIVE IMAGINATIONS in January of 2005. Further, Respondent denies any knowledge of
Complainant’s mark prior to registration of the domain and notes that
Complainant has not shown any evidence of common law trademark rights prior to
May of 2001 or at any time. Accordingly,
Respondent says that it has every legitimate right to use the domain as it does
and that it could not have resgistered or used the <creativeimaginations.com> domain in bad faith.
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.
It is not necessary for the Panel to make
findings on the first two elements of the Policy since Complainant has clearly
failed to show registration and use in bad faith on the part of the Respondent.
Accordingly, Complainant has failed to meet the burden of proof of bad faith registration and use under Policy ¶ 4(a)(iii). See Starwood Hotels & Resorts Worldwide, Inc. v. Samjo CellTech.Ltd, FA 406512 (Nat. Arb. Forum Mar. 9, 2005) (finding that the complainant failed to establish that the respondent registered and used the disputed domain name in bad faith because mere assertions of bad faith are insufficient for a complainant to establish Policy ¶ 4(a)(iii)); see also Graman USA Inc. v. Shenzhen Graman Indus. Co., FA 133676 (Nat. Arb. Forum Jan. 16, 2003) (finding that general allegations of bad faith without supporting facts or specific examples do not supply a sufficient basis upon which the panel may conclude that the respondent acted in bad faith).
Accordingly, Complainant has failed to satisfy Paragraph 4(a)(iii) of the Policy.
Reverse Domain Name
Hijacking
The Panel declines to make a finding of
reverse domain name hijacking on the part of Complainant.
DECISION
Complainant having failed to establish all three elements required under
the ICANN Policy, the Panel concludes that relief shall be DENIED.
James A. Carmody, Esq., (Chair)
David A. Einhorn, Esq.
Joel M. Grossman, Esq.
Dated: February 5, 2009
Click Here to return
to the main Domain Decisions Page.
Click
Here to return to our Home Page
National
Arbitration Forum