national arbitration forum




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, California, USA.  Respondent is Altiux Acquisistions, Inc and Bill Vargas (“Respondent”), Georgia, USA.



The domain name at issue is <>, 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 November 24, 2009; the National Arbitration Forum received a hard copy of the Complaint on November 30, 2009.


On November 25, 2009, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the <> domain name is registered with Enom, Inc. and that Respondent is the current registrant of the name.  Enom, Inc. has verified that Respondent is bound by the Enom, Inc. 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 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 by e-mail.


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


On December 31, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Judge Ralph Yachnin 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 confusingly similar to Complainant’s QUIKSHIP TONER 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, Quikship 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 November 5, 2007. 


Respondent registered the <> domain name on November 30, 2008.  The disputed domain name redirects Internet users to Respondent’s website at <>, where Respondent is selling toner products that compete with Complainant for business.



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 <> to the Claimant, and the Panel  concludes that such relief shall be GRANTED.

Accordingly, it is Ordered that the <> domain name be TRANSFERRED from Respondent to Complainant.




Hon. Ralph Yachnin, Panelist

Justice, Supreme Court, NY (Ret.)


Dated:  January 15, 2010



Click Here to return to the main Domain Decisions Page.


Click Here to return to our Home Page


National Arbitration Forum