Quikship California, Inc. d/b/a Quikship Toner v. Altiux Acquisitions, Inc and Bill Vargas
Claim Number: FA0911001296154
Complainant is Quikship California, Inc. d/b/a Quikship
Toner (“Complainant”), represented by
David P. Berschauer, of Law Office of David P. Berschauer, APLC,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <quikshiptoners.com>, registered with Enom, Inc.
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.
Judge Ralph Yachnin as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On December 4, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of December 24, 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 firstname.lastname@example.org by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
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 <quikshiptoners.com> domain name is confusingly similar to Complainant’s QUIKSHIP TONER mark.
2. Respondent does not have any rights or legitimate interests in the <quikshiptoners.com> domain name.
3. Respondent registered and used the <quikshiptoners.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
California, Inc. d/b/a Quikship Toner, is an online retail store that
sells printer toner and related supplies under the QUIKSHIP TONER mark, which
Complainant registered with the United States Patent and Trademark Office
(“USPTO”) on October 6, 2009 (Reg. No. 3,694,399, filed December 5, 2008). Complainant has used the QUIKSHIP TONER mark
continuously in commerce to sell its toner products since at least as early as
Respondent registered the <quikshiptoners.com>
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.
At this point it would the duty of the panel to examine into each of the aforesaid three elements to ascertain whether the Complainant has established its case, notwithstanding that the Respondent has defaulted in appearing. However, shortly after the receipt of the claim, the National Arbitration Forum received the following email from David P. Berschauer, Esq., the attorney for the Complainant, which was then transmited to the undersigned:
The parties have entered into a verbal settlement whereby Mr. Vargas has tendered the websites to our client. The transfer has been effectuated as far as possible without the permission of the Registrar which has blocked the accounts pending the outcome of this matter. Please pass this information along to the arbitrator.
From the aforesaid, it is the conclusion of this Panel that both parties are desirous of transferring the domain name <quikshiptoners.com> to the Claimant, and the Panel concludes that such relief shall be GRANTED.
Accordingly, it is Ordered that the <quikshiptoners.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
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