LTD Commodities, LLC v. Domain Administrator
Claim Number: FA0902001247303
Complainant is LTD
Commodities, LLC (“Complainant”),
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <abcdidtributing.com> and <abcdistributions.com>, registered with Moniker.com.
The undersigned certifies that she has acted independently and impartially and that to the best of her knowledge she has no known conflict in serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically February 12, 2009; the National Arbitration Forum received a hard copy of the Complaint February 17, 2009.
On February 13, 2009, Moniker.com confirmed by e-mail to the National Arbitration Forum that the <abcdidtributing.com> and <abcdistributions.com> domain names are registered with Moniker.com and that Respondent is the current registrant of the names. Moniker.com verified that Respondent is bound by the Moniker.com registration agreement and thereby has 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 27, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 19, 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@abcdidtributing.com and postmaster@abcdistributions.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On March 26, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. Carolyn Marks Johnson to sit as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum 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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. The domain names that Respondent registered, <abcdidtributing.com> and <abcdistributions.com>, are confusingly similar to Complainant’s ABC DISTRIBUTING mark.
2. Respondent has no rights to or legitimate interests in the <abcdidtributing.com> and <abcdistributions.com> domain names
3. Respondent registered and used the <abcdidtributing.com> and <abcdistributions.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, LTD Commodities, LLC, owns the ABC DISTRIBUTING mark, which has been registered with the United States Patent and Trademark Office (“USPTO”) (i.e. Reg. No. 2,911,448 issued December 14, 2004). Complainant uses the mark in connection with telephone, facsimile, Internet, and mail order services.
Respondent registered the disputed <abcdidtributing.com> and <abcdistributions.com> domain names October 15, 2003 and September 4, 2002, respectively.
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."
Given 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 will draw such inferences as the Panel 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 Complainant to 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.
The Panel finds that Complainant has rights in its ABC
DISTRIBUTING mark under Policy ¶ 4(a)(i) by
registering its mark with the USPTO. See Reebok Int’l Ltd. v.
The disputed <abcdidtributing.com>
and <abcdistributions.com>
domain names contain Complainant’s ABC DISTRIBUTING mark while misspelling the
word “distributing” or changing the verb “distributing” to a pluralize noun for
“distributions,” and adding the generic top-level domain “.com.” The Panel finds that none of the alterations
creates a meaningful distinction, and as such, demonstrates that the disputed
domain names are confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i). See Jerry Damson, Inc. v.
The Panel finds that Complainant satisfied the elements of
ICANN Policy ¶ 4(a)(i).
Complainant alleges that Respondent lacks rights and
legitimate interests in the disputed domain names. The Panel finds that Complainant must set
forth a sufficient prima facie case
supporting this assertion, before the burden shifts to Respondent to show rights
to or legitimate interests in the disputed domain names. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum
Aug. 18, 2006) (holding that the complainant must first make a prima facie
case that the respondent lacks rights and legitimate interests in the disputed
domain name under Policy ¶ 4(a)(ii) before the burden
shifts to the respondent to show that it does have rights or legitimate
interests in a domain name); see also Swedish
Match UK Ltd. v. Admin, Domain,
FA 873137 (Nat. Arb. Forum Feb. 13, 2007) (finding that once a prima
facie case has been established by the complainant under Policy ¶ 4(c), the
burden then shifts to the respondent to demonstrate its rights or legitimate
interests in the disputed domain name).
However, the Panel has determined, for the reasons set out below, that
Complainant has failed its burden.
Complainant must
set forth evidence that Respondent is using the disputed domain names in a way
that infringes upon Complainant’s rights.
A prima facie assertion that Respondent lacks rights and
legitimate interests may include evidence or exhibits under Policy ¶¶ 4(c)(i) and (iii). Complainant may also show that a respondent
has not made a bona fide offering of goods or services, or a legitimate
noncommercial or fair use, respectively.
In this case, Complainant
failed to make allegation as to how Respondent is or is not using the disputed
domain names. Complainant merely urges
the Panel to find that Respondent’s sole and entire purpose is to “benefit from
affiliate sales.” However, did not offer
any evidence, even an Internet screenshot that would show or permit an
inference of such use or non-use. The
Panel may not make an inference relative to a respondent’s use or non-use of a
disputed domain name based solely on a complainant’s vague assertions that are
not submitted with some proof in support.
Complainant has the
burden to set forth a prima facie case before the Panel can analyze the
merits of the case. Because Complainant
failed to supply any meaningful allegations or evidence towards a Policy ¶¶ 4(c)(i) and/or (iii) finding, the Panel has no choice but to
find that Complainant failed to make its prima facie case under Policy ¶
4(a)(ii). See O.C.
Seacrets, Inc. v. S. TradeWINs, Inc.,
FA 328042 (Nat. Arb. Forum Oct. 29, 2004) (“Complainant
has provided no evidence as to the use of the <jamaicausa.com> domain
name and has merely asserted that Respondent has no rights or legitimate
interests, which is not sufficient to support a finding that Respondent lacks
rights or legitimate interests.”); see
also Claessens Prod. Consultants BV v. Claessens Int’l Ltd.,
FA 238656 (Nat. Arb. Forum Apr. 23, 2004) (finding
that Complainant failed to meet its burden pursuant to Policy ¶ 4(a)(ii) where
Complainant neglected to state how Respondent used the disputed domain name in
the Complaint).
The Panel finds that Complainant failed to satisfy the elements of ICANN Policy ¶ 4(a)(ii).
Given that the Panel found that Complainant failed to make a prima facie showing under Policy ¶ 4(a)(ii), it is not necessary to analyze the third prong of Complainant’s burden. Without some evidence of use or nonuse, the Panel lacks evidence to determine whether Respondent acted in bad faith under the elements of ICANN Policy ¶ 4(a)(iii). See Ming v. Evergreen Sports, Inc., FA 154140 (Nat. Arb. Forum May 29, 2003) (“Complainant has not alleged any facts related to Respondent's use of the disputed domain name. The Complaint merely asserts a legal conclusion. Thus, the Panel has no knowledge of Respondent's use of the domain name upon which to base a decision under Policy ¶ 4(a)(ii) and (iii).”); see also 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 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)).
The Panel finds that Complainant failed to satisfy the elements of ICANN Policy ¶ 4(a)(iii).
Complainant’s having failed to establish all three elements as required under ICANN Policy, the Panel concludes that relief shall be DENIED. Since this is not a decision based on the merits but a Decision that is required by Complainant’s procedural and evidentiary deficiencies, the determination here does not preclude Complainant from filing another action with appropriate pleadings and support.
Hon. Carolyn Marks Johnson, Panelist
Dated: April 9, 2009.
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