TeamTrade, Inc. v. Net c/o Rick Coulthurst
Claim Number: FA0811001233082
PARTIES
Complainant is TeamTrade, Inc. (“Complainant”), represented by Jean
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <serovera.tv>, registered with Network Solutions, Inc. (the “Disputed Domain Name”).
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.
Kendall C. Reed as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum electronically on November 7, 2008; the National Arbitration Forum received a hard copy of the Complaint on November 7, 2008.
On November 7, 2008, Network Solutions, Inc. confirmed by e-mail to the National Arbitration Forum that the <serovera.tv> domain name is registered with Network Solutions, Inc. and that the Respondent is the current registrant of the name. Network Solutions, Inc. has verified that Respondent is bound by the Network Solutions, 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 14, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of December 4, 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@serovera.tv by e-mail.
A timely Response was received and determined to be complete on December 5, 2008.
On
December 12, 2008, pursuant to Complainant’s request to have the dispute
decided by a single-member Panel,
the National Arbitration Forum appointed Kendall C. Reed as Panelist.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
Complainant is the owner of
The Disputed Domain Name is almost identical and is confusingly similar to Complainant’s Trademark.
Respondent is a competitor to Complainant with respect to a similar product.
Respondent is attempting pass-off its products as those of Complainant though the use of the Disputed Domain Name.
B. Respondent
The real party in interest for
Respondent is CCH Nutrition. Inc (“CCH”). CCH is the owner of a
Such conduct by Complainant is in bad faith.
Complainant cannot pursue the present complaint against Respondent while Complainant is itself engaged in such bad faith conduct. Complainant comes before this Panel with unclean hands, and for this reason relief should be denied.
FINDINGS
Complainant is the
owner of
The Disputed Domain Name is identical to Complainant’s Trademark.
Complainant has failed to establish that Respondent registered and used the Disputed Domain Name in bad faith.
Complainant has failed to establish that Respondent has no rights or legitimate interests in the Disputed Domain Name.
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.
Policy paragraph 4(a)(i) is a threshold consideration, and if this element is not satisfied, then the Policy is not triggered.
In order for this element to be established, a complainant must have rights in a trademark, and the respondent’s domain name must be either identical or confusingly similar thereto.
Rights in a trademark can be established through ownership of a trademark registration in a national registry, such as the United States Patent and Trademark Office. See Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004) (“Registration of the NASAL-AIRE mark with the USPTO establishes Complainant's rights in the mark.”); see also Janus Int’l Holding Co. v. Rademacher, D2002-0201 (WIPO Mar. 5, 2002) ("Panel decisions have held that registration of a mark is prima facie evidence of validity, which creates a rebuttable presumption that the mark is inherently distinctive.").
For purposes of determining identicality or confusing similarity, a panel compares the respondent’s domain name to the complainant’s trademark. For purposes of this comparison, minor variations are ignored, including the top-level domain identifiers. See World Wrestling Fed'n Entm't, Inc. v. Rapuano, DTV2001-0010 (WIPO May 23, 2001) (“The addition of the country code top level domain (ccTLD) designation <.tv> does not serve to distinguish [the disputed domain] names from the complainant’s marks since ‘.tv’ is a common Internet address identifier that is not specifically associated with Respondent.”); see also Clairol Inc. v. Fux, DTV2001-0006 (WIPO May 7, 2001) (finding that the domain name <clairol.tv> is identical to the complainant’s CLAIROL marks).
In the present
case, Complainant is the owner of a
The Disputed Domain Name is <serovera.tv>. Removing the top-level domain identifier yields <serovera>.
A simple comparison of Complaint’s Trademark and the Disputed Domain Name demonstrates that the two are identical.
As such, Complainant has established this threshold element of the Policy.
Complainant asserts that Respondent registered and is using
the Disputed Domain Name in bad faith.
Complainant asserts that Respondent is selling a product over the
Internet, and by way of the Disputed Domain Name, which is similar to a product
sold by Complainant. Complainat further
asserts that Respondent is doing so with the intent to confuse Internet users
as to the source or sponsorship of Respondent’s product.
Complainant does not provide any evidence to support these
assertions. In the absence of evidence,
the Panel cannot determine whether these assertions are correct. 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).
As such, Complainant has not established this element of the Policy.
Complainant similarly fails to provide evidence that Respondent lacks rights or legitimate interests and for this reason has not established this element of the Policy.
DECISION
Having failed to establish all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.
Kendall C. Reed
Panelist
Dated: December 26, 2008
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