national arbitration forum




Spencer March c/o v. Zuijin Ling

Claim Number: FA0903001252930




Complainant is Spencer March c/o (“Complainant”), New York, USA.  Respondent is Zuijin Ling (“Respondent”), China.




The domain name at issue is <>, registered with Communigal Communications Ltd.




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.


Bruce E. Meyerson as Panelist.




Complainant submitted a Complaint to the National Arbitration Forum electronically on March 18, 2009; the National Arbitration Forum received a hard copy of the Complaint on March 23, 2009.  The Complaint contained no current WHOIS information about Respondent.


On March 19, 2009, Communigal Communications Ltd confirmed by e-mail to the National Arbitration Forum that the <> domain name is registered with Communigal Communications Ltd and it is unclear whether Respondent is the current registrant of the name.  Communigal Communications Ltd has verified that Respondent is bound by the Communigal Communications Ltd 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 March 26, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of April 15, 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 by e-mail.


Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.


On April 21, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Bruce E. Meyerson as Panelist.


Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum has 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 name be transferred from Respondent to Complainant.




A.  Complainant makes the following assertions:


1.      Respondent’s <> domain name is identical to Complainant’s TCBN mark.


2.      Respondent does not have any rights or legitimate interests in the <> domain name.


3.      Respondent registered and used the <> domain name in bad faith.


B.  Respondent failed to submit a Response in this proceeding.




Complainant, Spencer March, is the owner of the popular website located at the <> and <> domain names.  The website resolving from Complainant’s domain names offers college students a forum to blog about a variety of issues. 


Complainant made initial domain name purchase inquiries directly to Respondent based on Respondent’s WHOIS contact information.  After Complainant received no reply from Respondent, Complainant filed a Complaint with ICANN to report fraudulent WHOIS information.  As a result, Respondent was suspended from the <> domain name and does not have any WHOIS information.  However, Exhibit G of the Complaint displays a screenshot of Respondent’s former WHOIS information before its suspension.  Respondent’s disputed domain name resolves to a website displaying third-party links unrelated to Complainant.[1]




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."


In view of 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 draw such inferences it 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 that 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 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.


Identical and/or Confusingly Similar


Complainant does not have a registered trademark for the TCBN mark.  However, registration is unnecessary pursuant to Policy ¶ 4(a)(i), provided Complainant can establish common law rights in the mark.  See SeekAmerica Networks Inc. v. Masood, D2000-0131 (WIPO Apr. 13, 2000) (finding that the Rules do not require that the complainant's trademark or service mark be registered by a government authority or agency for such rights to exist); see also British Broad. Corp. v. Renteria, D2000-0050 (WIPO Mar. 23, 2000) (noting that the Policy “does not distinguish between registered and unregistered trademarks and service marks in the context of abusive registration of domain names” and applying the Policy to “unregistered trademarks and service marks”).


In order for Complainant to establish common law rights in the TCBN mark pursuant to Policy ¶ 4(a)(i), Complainant must prove that its mark has acquired secondary meaning through its history of use.  See Tuxedos By Rose v. Nunez, FA 95248 (Nat. Arb. Forum Aug. 17, 2000) (finding common law rights in a mark where its use was continuous and ongoing, and secondary meaning was established).  In addition, cases involving acronyms note that a complainant has a heightened burden of proof and must prove that its mark has “become a distinctive identifier associated with the complainant or its goods and services.”  See Utah Educ. Assistance Auth. v. JIT Ltd., D2006-0091 (WIPO Mar. 21, 2006) (finding that the complainant’s UESP mark had acquired secondary meaning through its continuous use since 1996, its operation of the website located at the <> domain name, and its use of the UESP mark as an obvious acronym for the Utah Education Savings Plan on its official website). 


In this case, Complainant has provided allegations of its use of the TCBN mark in connection with the <> and <> domain names since 2008 as a means of providing the college students with a forum to blog about a variety of issues.  In addition, Complainant provides allegations that the TCBN mark is widely associated with Complainant’s website by Internet users and media outlets.


The Panel finds, however, that Complainant has not submitted evidence to support the allegations set forth in the Complaint.  Complainant has therefore failed to establish the minimum amount of distinctiveness required to prove secondary meaning.  See Weatherford Int’l, Inc. v. Wells, FA 153626 (Nat. Arb. Forum May 19, 2003) (“Although Complainant asserts common law rights in the WELLSERV mark, it failed to submit any evidence indicating extensive use or that its claimed mark has achieved secondary source identity . . . [Complainant’s claim that it is well known] is a finding that must be supported by evidence and not self-serving assertions.”); see also Molecular Nutrition, Inc. v. Network News & Publ’ns, FA 156715 (Nat. Arb. Forum June 24, 2003) (finding that the complainant failed to establish common law rights in its mark because mere assertions of such rights are insufficient without accompanying evidence to demonstrate that the public identifies the complainant’s mark exclusively or primarily with the complainant’s products).


The Panel finds that Policy ¶ 4(a)(i) has not been satisfied.


Because Complainant has failed to meet the requirements of Policy ¶ 4(a)(i), it is unnecessary to consider the remaining requirements of Policy ¶ 4(a).





Having failed to establish all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.


Accordingly, it is Ordered that the <> domain name REMAIN with Respondent.




Bruce E. Meyerson, Panelist

Dated:  May 4, 2009



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[1] Exhibit G displays an email from the Registrar displaying Respondent’s original WHOIS information, which was removed by the Registrar prior to Complainant’s UDRP Complaint.  In addition to the WHOIS information, the screenshot displays the Registrar’s advice to Complainant that it should contact Respondent about purchasing the disputed domain name or file a UDRP complaint.  The Panel notes that the UDRP Policy specifically aims to prevent cybersquatting and does not apply to cases where Complainant is unable to purchase the disputed domain name and is looking for an alternative means of acquiring it.