Free Bridge Auto Sales Inc. v. Larry Ross
Claim Number: FA0907001272427
Complainant is Free Bridge Auto Sales Inc. (“Complainant”), represented by James
D. Wilson, of Enormous Industries Inc.,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <everybodyrides.com>, registered with Register.com, Inc.
The undersigned certifies that they have acted independently and impartially and to the best of their knowledge has no known conflict in serving as Panelist in this proceeding.
Anne M. Wallace and P. Jay Hines as the Panelists and Honorable Karl V. Fink (Ret.) as Chair.
Complainant submitted a Complaint to the National Arbitration Forum
A timely Response was received and determined to be complete on
On July 30, 2009, pursuant to Complainant’s request to have the dispute decided by a three-member Panel, the National Arbitration Forum appointed Anne M. Wallace and P. Jay Hines as Panelists and Honorable Karl V. Fink (Ret.) as Chair.
Complainant requests that the domain name be transferred from Respondent to Complainant.
Free Bridge Auto Sales, Inc., a
Free Bridge is located in
Free Bridge first used its mark EVERYBODY RIDES in interstate commerce
On November 14, 1995, EVERYBODY RIDES was registered in
January 14, 1997 – the USPTO granted Free Bridge U.S. Service mark Reg. no. 2,030,345 for its EVERYBODY RIDES mark.
Respondent’s use of EVERYBODY RIDES caused and continues to cause a likelihood of confusion.
Respondent uses the exact same mark: EVERYBODY RIDES.
The Respondent registered <everybodyrides.com> May 1, 2000 four years after the mark was filed and three years after being granted by the Federal Government.
Free Bridge Auto Sales Inc. asked the Respondent to cease and desist directly along with transferring the name over to Free Bridge Auto Sales, Inc. Respondent said that he plans on keeping the domain name parked and offered to sell the name to Free Bridge Auto Sales, Inc. for no less than $5,000.
After that the Respondent kept the domain name parked at his current registrar Register.com along with changing his registration info.
When the Respondent went to register the domain name <everybodyrides.com> he had to sign off on the Registrar Service Agreement.
The Respondent exhibited bad faith by failing to conduct a trademark search or to obtain advice of counsel before registering the domain name <everybodyrides.com>.
Respondent should be considered as registering it in bad faith because he changed his domain contact information to a dummy company, Domain Discreet.
The Respondent lived in the area and continues to live in the area of
Respondent is continuing to use EVERYBODY RIDES in commerce in connection with automobile sales and financing. The domain name was just renewed this year despite the cease and desist, and the first and recent UDRP proceeding and other legal letters or actions against him.
In May 2000, Respondent logged onto Register.com and entered several different combinations of words. <everybodyrides.com> was available and he purchased it. It has remained parked on Register.com since then.
Respondent attached the Panel’s decision on April 28, 2009 domain dispute between the parties. In that matter, Free Bridge Auto Sales Inc. v. Larry Ross, FA 1250951 (Nat. Arb. Forum April 29, 2009), the Panel denied relief to Complainant ruling that Complainant had not proven registration of the domain name in bad faith.
For the reasons set forth below, the Panel finds relief should be denied.
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.
Preliminary Issue: Res Judicata
Complainant previously submitted a complaint regarding the <everybodyrides.com> domain name. The complaint was denied by the panel in that case on the grounds that Complainant failed to prove Bad Faith Registration by Respondent. See Free Bridge Auto Sales Inc. v. Larry Ross, FA 1250951, (Nat. Arb. Forum April 29, 2009).
Typically, complaints may not be resubmitted for relief subsequent to their denial due to res judicata principles unless the complainant meets its high burden of demonstrating the need for such additional review. See, e.g., Creo Prods. Inc. v. Website in Dev., D2000-1490 (WIPO Jan. 19, 2001) (finding that the burden of establishing that a second complaint should be entertained is “high”). Several criteria have been set forth for determining whether a complaint may be refiled. See Grove Broad. Co. Ltd. v. Telesystems Commc’ns Ltd., D2000-0703 (WIPO Nov. 10, 2000) (noting, and subsequently applying to the UDRP, the four common-law grounds for the rehearing or reconsideration of a previously filed decision as (1) serious misconduct on the part of a judge, juror, witness or lawyer; (2) perjured evidence having been offered to the court; (3) the discovery of credible and material evidence which could not have been reasonably foreseen or known at trial; or (4) a breach of natural justice).
Complainant has presented nothing that would support entertaining this second complaint. The Panel finds this proceeding is barred by the earlier decision. See CommScope, Inc. of N.C. v. Kuehleitner, FA 1260847, (Nat. Arb. Forum June 29, 2009). (The Panel finds that the Complaint is barred by the decrement of res judicata.) See also Koninklijke Philips Elecs. N.V. v. Relson Ltd., DWS2002-0001 (WIPO June 14, 2002) (determining that it “should follow the consensus view that has emerged” with regard to refiled complaints and holding such refiling impermissible unless the subsequent proceeding would be appropriate under the Grove Broadcasting standards).
Having found that Complainant’s re-filing is precluded on the basis of res judicata, the Panel concludes that this re-filing be dismissed and therefore relief shall be DENIED.
Accordingly, it is Ordered that the <everybodyrides.com> domain name be RETAINED by Respondent.
Honorable Karl V. Fink (Ret.), Chair
Anne M. Wallace, Panelist
P. Jay Hines, Panelist
Dated: August 12, 2009
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