Edible Brands, Inc. v. Stefan Schinzinger c/o
Schinzinger Kellman
Claim Number: FA0902001246518
PARTIES
Complainant is Edible Brands, Inc. (“Complainant”),
represented by Richard R. Michaud, of Michaurd-Duffy Group LLP,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <ediblebrands.com>
(the “Domain Name”), registered with Markmonitor
Inc.
PANEL
The undersigned certify that each has acted independently and
impartially and to the best of his knowledge has no known conflict in serving
as Panelist in this proceeding.
Hon. Daniel B. Banks, Jr. and Hon. James A. Crary as Panelists, and Christopher
Gibson as the Panel chair.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum (“Forum”)
electronically on February 6, 2009; the Forum received a hard copy of the
Complaint on February 9, 2009.
On February 9, 2009, Markmonitor Inc. confirmed by e-mail to the Forum
that the Domain Name is registered with Markmonitor and that the Respondent is
the current registrant of the name.
Markmonitor has verified that Respondent is bound by the Markmonitor
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 February 12, 2009, a Notification of Complaint and Commencement of
Administrative Proceeding (the “Commencement Notification”), setting a deadline
of March 4, 2009 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@ediblebrands.com by e-mail.
A timely Response was received and determined to be complete on March
4, 2009.
An Additional Submission was received from Complainant on March 9, 2009
and found to be timely and complete pursuant to the Forum’s Supplemental Rule
7.
Although Respondent raised an objection that
Forum Supplemental Rule 7 is inconsistent with the Policy Rule 12, Respondent nonetheless
submitted its Response to Complainant’s Supplement, which was received on March
16, 2009 and found to be timely and complete according to the Forum's Supplemental
Rule 7. The Panel has decided that it
will consider the parties’ additional submissions.
On March 12, 2009, pursuant to Respondent’s request
to have the dispute decided by a three-member
Panel, the Forum appointed Hon. Daniel
B. Banks, Jr., Hon. James A. Crary and Christopher S. Gibson as Panelists.
RELIEF SOUGHT
Complainant requests that the Domain Name be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
The Complainant, Edible Brands, Inc., through various related entities,
has been in business since 1998 providing fresh fruit that is cut into flower
shapes and arranged in floral designs. Complainant
has spent significant sums advertising its business and has achieved great
commercial success, with about 870 stores worldwide and many throughout the
Complainant is the holding company for Edible Arrangements, LLC, which is
the owner of the family of EDIBLE
ARRANGEMENTS trademarks, which have been registered with the United States
Patent and Trademark Office (“USPTO”) over the last several years. The earliest registration (for the mark EDIBLE
ARRANGEMENTS) dates from June 6, 2000, while the most recent registrations date
from December 2008. Complainant also states
that January 2, 2009 is the date of first use and application for a trademark
registration for EDIBLE BRANDS, a mark that would be virtually identical to the Domain Name. Complainant’s primary website is
located at www.ediblearrangements.com.
Complainant
contends that Respondent’s Domain Name is confusingly similar to one or more of
Complainant’s “EDIBLE” family of marks. A dominant feature in the Complainant’s marks
is the term EDIBLE. The dominance of the
EDIBLE portion of Complainant’s marks is established by Complainant’s
attainment of international fame regarding the goods and services associated
with Complainant’s EDIBLE family of marks.
The Domain Name is confusingly similar to Complainant’s marks because it
consists of the dominant EDIBLE term, along with the addition of the terms “BRANDS’
and “.com,” neither of which is sufficient to distinguish the Domain Name from
Complainant’s EDIBLE family of marks.
Complainant
contends that Respondent has no rights or legitimate interest in the Domain Name. On January 19, 2009, Respondent transmitted
an email to Complainant offering the Domain Name for sale for an amount of
$20,000. Such an offer for sale is
evidence that Respondent has no legitimate interest in the Domain Name. The Complainant
replied to Respondent’s offer by informing Respondent that their actions
constitute cybersquatting. Complainant also expressed an interest in resolving
matters amicably, but as of the date of filing the Complaint, Respondent had
failed to reply. Moreover, Respondent is
not affiliated with Complainant and has not been licensed or otherwise
authorized to use Complainant’s EDIBLE family of marks. In addition, Respondent
is not commonly known by the Domain Name, nor is Respondent using it for any bona fide offering of goods or services. A WHOIS search for the Domain Name indicates
that Respondent is known as Schinzinger Kellman.
In
addition, Complainant is not aware of any legitimate noncommercial or fair use
of the Domain Name by Respondent. Respondent’s
website associated with the Domain Name provides links to other websites
including those of several of Complainant’s competitors. Respondent’s website is essentially an online
directory with pay-per-click links to many websites that provide services in
direct competition with those of the Complainant.
Respondent
registered and used the Domain Name in bad faith for commercial gain. Complainant contends that in this case,
Respondent was familiar with Complainant’s EDIBLE family of marks and has intentionally
attempted to attract Internet users to Respondent’s website by creating a
likelihood of confusion with Complainant’s marks. Respondent’s use of the website associated
with the Domain Name is intended to infer sponsorship, affiliation or
endorsement of Respondent’s website with or by Complainant. Even if Respondent was unfamiliar with
Complainant’s EDIBLE family of marks, Respondent is charged with constructive
notice of the marks by Complainant’s applications for registration with the
USPTO. As such, Respondent could have discovered the marks upon performing a
trademark search. Respondent’s intentional
attempt to attract Internet users by creating a likelihood of confusion with
Complainant’s marks also establishes bad faith registration. According to the Internet archive
“Waybackmachine” (at the http://web.archive.org), Respondent registered the Domain
Name on July 20, 2005, but did not initiate operation of a website until at least
August 31, 2008. Accordingly, Respondent
failed to operate a website with the Domain Name for about three years and such
non-use also constitutes bad faith. Finally, Respondent offered the Domain Name
for public sale for an amount of $20,000, which is further evidence of bad faith.
B. Respondent
Respondent first contends that Complainant does not have “rights” in a
trade or service mark that is identical or confusingly similar to the Domain
Name. Complainant claims to be a “holding
company for the owner” of a number of federal trademark registrations. Even if the Complainant, Edible Brands Inc.,
were shown to be some sort of “holding company” of Edible Brands LLC, there is
no license, assignment, or other evidence of how the Complainant “has rights”
in any of the trademarks owned by Edible Brands LLC. In addition, the Complainant is the direct
owner of US trademark application no. 77,642,519 for EDIBLE BRANDS, filed on
January 2, 2009 and claiming a first use on that date. The Complainant makes no attempt to explain
why, in its role as a mere “holding company,” it purports to be the direct
owner of this mark. Respondent argues that
the Complainant is no “holding company,” but instead is a separate legal entity
formed for the purpose of providing a line of services that are distinctly
different from the goods and services which are claimed to be provided by
Edible Arrangements LLC, a non-party to this Proceeding.
With respect to Complainant’s
pending trademark application for EDIBLE BRANDS, Respondent contends that it demonstrates
nothing: a pending trademark application confers no enforceable rights. Moreover, there can
be no chronologically relevant rights claimed in the purported EDIBLE BRANDS
mark, of which the Complainant claims first use in 2009, relative to the Domain
Name registered by Respondent in 2005.
According to Respondent, the complaint is constructed to conceal that
the Complainant is engaged in an entirely different line of business than that
conducted by Edible Arrangements LLC.
The Respondent reviews the marks of Edible Brands
LLC to show that a number of them bear a first use or registration date after
the July 2005 date of registration of the Domain Name. As for the earliest mark registration, US Supplemental
Reg. No. 2356362 for EDIBLE ARRANGEMENTS, which was registered on June 6, 2000,
Respondent states that Complainant failed to mention that it was refused from
the Principal Trademark Register, and the owner instead amended to the
Supplemental Register, thus acquiescing in the USPTO’s determination that the
term was not distinctive, but merely descriptive. Through detailed review of the marks
presented by Complainant, the Respondent claims that Complainant has produced only
(i) a trademark registration (predating the Domain Name registration) that disclaims
the EDIBLE ARRANGEMENTS phrase as a whole, and (ii) another which was amended
to the Supplemental Register after having been refused registration.
Respondent denies that these
chronologically relevant marks are identical or confusingly similar to the
Domain Name <ediblebrands.com>. The only thing these marks and the Domain
Name have in common is the generic word EDIBLE.
According to Respondent, the question then becomes whether the marks
confer a right in the word EDIBLE apart from the word ARRANGEMENTS or the
various logo marks obtained. Respondent urges that, apart from its appearance
in a compound mark, the term “edible” is not distinctive of the Complainant. Respondent
has provided a print-out from the USPTO showing one hundred and twenty three
pending or registered marks containing the word “EDIBLE” in connection with a
variety of edible products or otherwise related to goods and services having to
do with food. The records of the USPTO demonstrate
that the Complainant’s use of the word EDIBLE in connection with such products
is neither exclusive, nor distinctive, nor famous. Respondent thus contends that Complainant has
provided no evidence that, apart from its compound or graphical marks, it is
distinctively associated with the word “EDIBLE,” which is the sole common
element of all of the Complainant’s claimed marks and the Domain Name (with the
exception of the Complainant’s sole pending application for EDIBLE BRANDS claiming
first use in January 2009).
With respect to rights or legitimate
interests, Respondent emphasizes that the Policy expressly states that bona fide use of a domain name prior to notification of a dispute
constitutes a legitimate interest. The
Respondents are a partnership consisting of Stefan Schinzinger and Sally Kellman,
who are a husband and wife team of entrepreneurs which operate as “Schinzinger Kellman.” In 1998, Respondents believed that nascent
e-commerce on the Internet was likely to increase, and they conceived construction
of a network of generic portals that would promote branded products in various
categories of trade. In 1998, they registered their first domain name for this
project, <name-brands.com>, and since then they have accumulated a
portfolio of hundreds of “-brand” formative domain names, including many food-related domains, such as bagelbrands.com,
delibrands.com, creamcheesebrands.com, freshfoodbrands.com,
greengrocerbrands.com, healthyfoodbrands.com, homecookingbrands.com, organicfoodbrands.com,
nationalfoodbrands.com, preparedfoodbrands.com,
and others. Respondents have been prodigious registrants of “-brand”
formative domain names. All of the Respondent’s domain names are registered
through the registrar, MarkMonitor, which caters specifically to the branding
community and brand-conscious domain registrants. Early on, Respondents set out associating
these “brand portals” with relevant categories of goods or services through
direct affiliate advertising. Respondent
has, at various times, used, leased, or sold various brand formative domain
names in connection with promotional campaigns by others in relevant
industries.
Prior to mid-2006, the Respondent used the
Domain Name in connection with affiliate links to food related products sold by
Amazon.com. In mid-2006, Respondent
connected the Domain Name with the current pay-per-click type of arrangement. The page now connected with the Domain Name
is substantially unchanged since 2006. The
page at
<ediblebrands.com> unsurprisingly
states “Ediblebrands.com” and has links to categories of food products. Those links, in turn, act as search terms for
displays of vendor-specific ads relating to those search terms. The page also includes a search box, and this
feature is crucial to understanding Complainant’s other alleged “pages” generated
at the Respondent’s website. It is not
clear what search terms the Complainant used to generate a display of competitive
products, but it is also irrelevant. The search function retrieves search
results relating to things edible. With
particular reference to the Complainant’s competitors, the term “edible” is
freely used by other vendors in connection with edible bouquets of fruit in the
manner of floral arrangements, such as:
- Fresh Fruit Bouquet Company, at www.ffbc.com,
which sells “Fresh fruit bouquet
arrangements specially designed as edible
fruit flowers.”
- FlowersToEat.com, which sells “Edible
Fruit Flower Bouquets.”
- SweetFruitArrangements.com, which sells
“Edible Flower Arrangements.”
Respondent argues that these parties are
not infringing on an EDIBLE trademark by selling edible products, because the
term refers to a generic class. The
Respondent has every right to use a Domain Name indicating “Edible Brands” to provide
advertisements to brands of products which are edible – including the class of products
known variously as edible floral bouquets or edible flowers, in which the term EDIBLE
is used by multiple vendors of that type of common gift item. Again, this is because Complainant
demonstrably does not have an exclusive right in the word “edible” in
connection with that type of product, and there are multiple brands of the type
of edible product offered by Complainant.
Respondent gives the example of another
Regarding bad faith, Respondent argues that
the bad faith criterion is directed to an inquiry about why a respondent registers
a particular domain name. One can ask,
did the respondent register the domain name with an intent to target or usurp
the goodwill of the complainant, or was the respondent motivated by an independent
intent, unrelated to the complainant? In
this case, the Respondent argues that it falls into the latter category. As noted above, Respondent has engaged in a
campaign of registering a number of generic words and phrases, appending the
word “brand,” and using the resulting domain names in connection with the indicated
category of goods. Respondent has been
using the Domain Name since registration in 2005, and while the Respondent
regrets not having a screen copy of the page as it appeared in 2005, the
traffic statistics from 2006 render the Complainant’s allegation of non-use to
be factually false. Moreover, it is clear that the Complainant in this
proceeding has filed a single trademark application in 2009, claiming first use
in 2009, for “EDIBLE BRANDS” for a line of services having nothing to do with the
fruit baskets sold by Edible Arrangements LLC. It is further clear that the Respondent’s home
page provides search links to a variety of categories of edible products, which
produce search results showing various brands of edible products.
Respondent argues that the most scurrilous
accusation of the Complainant is that
Respondent, who had registered the Domain Name
in 2005, did so with the intent to sell the Domain Name to the Complainant in
2009. Respondent indicates that it could
not have registered the Domain Name in 2005 with a bad faith intent toward a
trademark application that would not be filed until 2009 and claiming use in
2009. Further, Respondent, as the
registrant and user of the Domain Name since 2005, had every right to offer it the
Complainant, who had filed and claimed to begun use of the mark in 2009. If the Complainant was not interested, Respondent
had every right to continue using the Domain Name – as the senior user of the
term “edible brands” – in the same manner it had been using it for several
years.
Respondent also asserts that Complainant deceptively
omitted certain correspondence between the parties, which further demonstrates
that the Domain Name was not
“registered for the primary purpose” of
selling it the Complainant or a competitor.
In summary, the Respondent submits that:
1. It could not have registered the Domain
Name in bad faith in 2005, relative to a
trademark application to be filed much
later in 2009 with a date of first use in 2009.
2. The Complainant does not have rights in
the word “Edible” with respect to fruit
gifts in the form of a floral arrangement
in view of widespread third-party use of the term
“edible” for such products, including a
wholly-unrelated US registered trademark owned by another party.
3. The Respondent is entitled to advertise
and otherwise link to any brand of edible
product using the Domain Name<edibleBrands.com>,
which can and does refer to any brand of product which is edible, including
those which compete with Edible Arrangements LLC.
4. The deceptive correspondence by the
Complainant and its agent in December and January of 2009 in no way demonstrates
that the Domain Name was registered in 2005 for the primary purpose of selling it
to the Complainant or a competitor.
Accordingly, Complainant has not shown the
Domain Name to have been registered and used in bad faith.
C. Additional Submissions
Complainant:
A summary of Complainant’s additional submission follows. Complainant, Edible Brands, Inc., first responds that as the holding company of Edible Arrangements LLC, it has rights in all of Edible Arrangements LLC’s common law and registered trademarks. Complainant has provided evidence that Tariq Farid is president of both companies, and that he and another principle officer and owner of Edible Arrangements LLC assigned their interests in this company to the Complainant. Based on these links, Complainant contends that it has a sufficient nexus to and interest in the Domain Name. Based on the foregoing, Respondent’s allegation that Complainant is a non-party to this proceeding should be ignored.
In response to Respondent’s arguments that Complainant lack rights in
its trademarks which predate registration of the Domain Name in 2005,
Complainant contends that it has trademark rights in the EDIBLE family of marks
through its continuous and famous use of the term EDIBLE in its businesses
since at least 1999, long before Respondent registered the Domain Name. Complainant opened their first store in 1999
under the name Edible Arrangements. A
timeline of Complaints rapid rise to fame with events pre-dating Respondent’s
2005 registration of the Domain Name is as follows:
• 2001 first franchise
opens
• 2002 four additional
franchises open
• 2002 Edible
Arrangements’ business concept was featured in “Inc.” magazine
• 2003 Edible
Arrangements was listed in the Wall Street Journal
• 2003 Edible Arrangements
featured on Food Network’s Top Five Program
• 2003 32 locations open
in the
• 2004 Edible
Arrangements ranked 44th in Entrepreneur’s Franchise 500
Complainant’s continuous use of the EDIBLE ARRANGEMENT mark as a designator of the source of its goods and services since 1999 demonstrates its common law rights in the EDIBLE ARRANGEMENTS mark. In addition to common law rights in its mark, Complainant has numerous registrations for its “Edible Family of marks” that pre-date Respondent’s registration of the Domain Name. Moreover, Complainant urges that Respondent has mis-stated relevant trademark law concerning the weight to be given to disclaimers: a disclaimer does not remove the disclaimed matter from the mark. The mark must still be regarded as a whole, including the disclaimed matter, in evaluating similarity to other marks. Further, Respondent’s citation of third-party use of trademarks using the term “EDIBLE” is irrelevant because the Complainant’s registration of EDIBLE ARRANGEMENTS marks unequivocally establishes Complainant’s trademark rights.
Complainant asserts that Respondent is not only a cyberpirate but a cyberpredator having hundreds of domain name registrations of potential trademark owners camouflaged with the generic term “brand.” Moreover, Respondent is an experienced cybersquatter skilled at making an offer for sale under the guise of legitimacy.
Respondent:
Respondent’s additional submission is summarized below. Respondent first indicates that, based on certain evidence in filings before the USPTO, Complainant improperly represented itself as “Edible Brands Inc.” prior to a recent name change which established the existence of such company. While the Complainant may have been preparing to change its name, such intent does not suffice for the purpose of swearing to the USPTO that it was in existence on the date sworn in its recent January 2009 trademark application.
Respondent also continues to challenge whether the Complainant, Edible Brands Inc., has demonstrated that it “has rights” in the marks or goodwill of Edible Arrangements LLC. With respect to the assignment of the interests of two individuals to Complainant, while these individuals were apparently members of the Edible Arrangements LLC, we do not know whether they were the sole members and owners of this entity. Respondent asserts that the documents submitted by the Complainant in this case do not even purport to convey any trade or service mark right to the Complainant, nor do they convey any license or enforcement interest in the marks of Edible Arrangements LLC to Complainant. In order to find that the Complainant has rights in trade or service marks owned by Edible Arrangements LLC, the Panel will be required to invent facts not of record to show how such rights were conveyed, licensed or assigned to the Complainant. To be clear, whether one company owns a controlling partial or complete interest in another company does not invest such company with rights to use or enforce the trade or service marks of the company so held.
Respondent recognizes that Edible Arrangements LLC has rights in the mark EDIBLE ARRANGEMENTS as an indivisible whole. However, Respondent continues to argue that the Complainant does not have rights in the term EDIBLE standing alone, and has no enforceable right in the term EDIBLE BRANDS. Where the Complainant is claiming rights in something other than its registered mark, EDIBLE ARRANGEMENTS, the Complainant must demonstrate the rights it is claiming. Moreover, evidence that other parties in the exact same line of goods, such as Incredibly Edible Delights, Inc., use the constituent word EDIBLE, which the Complainant has excised from its registered mark, demonstrates that the word in question is not exclusive or distinctive of the Complainant’s goods or services in the relevant marketplace.
Respondent against refutes
allegations that it registered the Domain Name in bad faith or should be
considered a cyberpredator. Respondent challenges
the accusation that its registration of a collection of generic words affixed
to the word “brand” as domain names operates to trump or otherwise infringe
FINDINGS
The Complainant, Edible Brands, Inc., through
various related entities, has been in business since 1998 providing fresh fruit
that is cut into flower shapes and presented in floral arrangements. Complainant’s primary website is located at www.ediblearrangements.com.
With respect the Complainant’s pending trademark
application for EDIBLE BRANDS, the application date and date of first use as
specified by Complainant is January 2, 2009.
Respondent registered the Domain Name on July
20, 1995.
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.
With respect to Complainant’s pending trademark application for EDIBLE
BRANDS, which is closely similar to the Domain Name, the Panel agrees with the Respondent
that this application confers no enforceable rights as against the Respondent. As Complainant itself has stated in its
complaint, the date of January
2, 2009 is the date of application and first use for this mark. This is in contrast to Respondent’s
registration of the Domain Name in July 2005.
The Panel does find that some of the trademarks relied upon by the Complainant – some of the EDIBLE ARRANGEMENTS and related family of marks – pre-date registration of the Domain Name. However, the Domain Name <ediblebrands.com> differs from Complainant’s EDIBLE ARRANGEMENTS mark in three ways: (1) the term ARRANGEMENTS has been removed; (2) the descriptive term BRANDS has been added to the end of the term EDIBLE; and (3) the generic top-level domain “.com” has been added. In this case, where the Respondent’s Domain Name has replaced the term ARRANGEMENTS with another non-synonymous, generic term, BRAND, the Panel finds that this change is sufficient to distinguish the Domain Name, <ediblebrands.com>, from the Complainant’s EDIBLE ARRANGEMENT mark, which must be taken as a whole. In this respect, the Panel agrees with the Respondent’s contention to refute Complainant’s claim that EDIBLE is the dominant and distinctive portion of Complainant’s EDIBLE ARRANGEMENTS mark. The Panel finds that the term EDIBLE alone is not distinctive of the Complainant. The comparison should be between the Domain Name and the EDIBLE ARRANGMENTS mark as an indivisible whole.
The Panel
therefore finds that the <ediblebrands.com>
Domain Name is not identical
or confusingly similar to the EDIBLE
ARRANGEMENTS marks pursuant to
Policy ¶ 4(a)(i). See
Dollar Fin. Group, Inc. v.
Oakridge, FA 94977 (Nat. Arb. Forum July 17, 2000) (finding that the domain
names, <tillpaydayloan.com>, <tillpaydayloans.com>,
<untilpaydayloan.com>, and <untilpaydayloans.com> are not identical
or confusingly similar to the complainant’s CASH ‘TIL PAYDAY and CASH ‘TIL
PAYDAY LOANS trademarks and service marks).
When a panel concludes that a complainant has not satisfied Policy ¶
4(a)(i) because the disputed domain name is not confusingly similar to the relevant
trademark, the panel may decline 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). In this case, however, the Panel chooses to
address the issue of bad faith.
The Respondent has urged the Panel to
consider an alleged lack of candor on the part of the Complainant. In these proceedings based on documents
alone, the Panel prefers not to do so.
The Panel observes only that the Respondent has submitted credible
evidence that it has registered a portfolio of
hundreds of “-brand” formative domain names, including many food-related domains incorporating the term
BRAND. The Panel finds that Respondent did not in any way target the Complainant or its
trademarks when it registered its portfolio of domain names, including
registration of the Domain Name in July 2005.
Nor should there be any constructive notice imputed against the
Respondent as to Complainant’s EDIBLE ARRANGMENTS family of marks, particularly
given that the Panel has found there is no confusing similarity between the
Domain Name and those marks. Finally,
the circumstances by which the Respondent offered the Domain Name for sale to
the Complainant for $20,000 do not, in this case, demonstrate that Respondent
registered the Domain Name for the primary purpose of selling it to the
Complainant or a competitor of the Complainant.
The Panel therefore finds that Complainant 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).
DECISION
Having failed to establish all three elements required under the ICANN
Policy, the Panel concludes that relief shall be DENIED.
Hon. Daniel B. Banks, Jr. and Hon. James A.
Crary, Panelists
Christopher Gibson, Chairman
Dated: April 2, 2009
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