Unex Corporation v. Josh Schmidt
Claim Number: FA1001001304075
Complainant is Unex Corporation (“Complainant”), represented by Justin B. Bender, New York, USA. Respondent is Josh Schmidt (“Respondent”), Louisiana, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <i-torc.com>, registered with Melbourne IT, Ltd.
The undersigned, Daniel B. Banks, Jr., as Panelist, 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.
Complainant submitted a Complaint to the National Arbitration Forum electronically on January 20, 2010; the National Arbitration Forum received a hard copy of the Complaint on January 29, 2010.
On January 21, 2010, Melbourne IT, Ltd. confirmed by e-mail to the National Arbitration Forum that the <i-torc.com> domain name is registered with Melbourne IT, Ltd. and that the Respondent is the current registrant of the name. Melbourne IT, Ltd. has verified that Respondent is bound by the Melbourne IT, 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 February 5, 2010, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of February 25, 2010 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.
A Response was received in hard copy, but an electronic copy was not submitted prior to the February 25, 2010 Response deadline, thus the Forum deemed the Response deficient pursuant to ICANN Rule 5.
On March 8, 2010, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Daniel B. Banks, Jr. as Panelist.
Complainant requests that the domain name be transferred from Respondent to Complainant.
The Complaint was copied and is set out in its entirety as follows:
DISPUTED DOMAIN NAME
[a.] The following domain name is the subject of this Complaint:
i-torc.com (hereinafter “the domain name”).
[b.] Registrar Information:
Registrar’s Name: MELBOURNE IT, LTD. D/B/A INTERNET
Address: Level 2,
Telephone Number: 61 3 8624 2400
E-Mail Address: email@example.com
[c.] Trademark/Service Mark Information:
Complaint is based on the following trademarks, each of which is owned by
Complainant (hereinafter collectively, the “Hytorc Marks”)3:
USPTO Registration No.: 1260784
USPTO Serial No.: 73295220
Description: Power Industrial Maintenance Tools-Namely, Power
Wrenches and Parts Thereof
USPTO Registration No.: 2130443
USPTO Serial No.: 75228658
Description: Hydraulic wrenches and parts thereof; pumps, hydraulic
tensioners, power-operated bolting tools for the tightening
and loosening of industrial fasteners, clamping nuts
FACTUAL AND LEGAL GROUNDS
This Complaint is based on the following factual and legal grounds:
[a.] The manner in which the domain name is identical and/or confusingly similar to the Hytorc Marks:
[i.] The domain name is confusingly similar to the Hytorc Marks in that the
domain name is similar to the marks “Hytorc”.
[ii.] The domain name is confusingly similar to the Hytorc Marks as to
appearance, sound, connotation and/or commercial impression.
[iii.] The domain name is identical and/or confusingly similar to the Hytorc
[iv.] The domain name is identical and/or confusingly similar to the Hytorc
Marks as the potential for confusion is blatant and substantial.
[v.] The domain name is confusingly similar to the Hytorc Marks as
Respondent, through the domain name is engaged and/or attempting to
engage in commerce for goods similar and/or identical to the listing of
goods set forth in Complainant’s federally registered trademarks.
[b.] The reasons Respondent should be considered as having no rights or legitimate interests in respect of the domain name:
[i.] Upon information and belief that Respondent’s use of the domain name is
not in connection with a bona fide offering of goods or services.
[ii.] Upon information and belief that Respondent has not been commonly
known by the domain name.
[iii.] Upon information and belief that Respondent has not acquired any
trademark or service mark rights in the domain name.
[iv.] Upon information and belief that Respondent is not making any legitimate
noncommercial or fair use of the domain name.
[v.] Upon information and belief that Respondent’s interest in the domain
name is for commercial gain to misleadingly divert consumers and/or to
tarnish the Hytorc Marks.
[c.] The reasons the domain name should be considered as having been registered in and as being used in bad faith:
[i.] Upon information and belief that Respondent has registered the domain
name primarily for the purpose of engaging and/or attempting to engage in
commerce for goods similar and/or identical to the listing of goods set
forth in Complainant’s federally registered trademarks.
[ii.] Upon information and belief that Respondent has registered the domain
name primarily for the purpose of disrupting the business of Complainant.
[iii.] Upon information and belief that Respondent, by using the domain name,
has intentionally attempted to attract, for commercial gain, Internet users
to Respondent’s web site by creating a likelihood of confusion with the
Complainant’s mark as to the source, sponsorship, affiliation, or
endorsement of Respondent’s web site and/or location and/or of a product
or service on Respondent’s web site or location.
Complainant requests that the Panel issue a decision that the domain-name registration be transferred from Respondent to Complainant.
Complainant's exhibits are as follows:
Exhibit A : USPTO Registration Certificate #1,260,784 for Trademark "HYTORC."
Exhibit B : USPTO Registration Certificate #2,130,443 for Trademark "HYTORC."
Exhibit C: Whois Service Printout showing results for i-torc.
Exhibit D: Incorporation of UDRP by Registrar.
Exhibit E: Copy of Uniform Domain Name Dispute Resolution Policy.
No other evidence or Exhibits are submitted by Complainant.
Respondent's reply is set out in its entirety as follows:
1 - Respondent filed an International Commercial Claim within the
Admiralty ab initio Administrative Remedy, File # RA483913684
2 - Complainant is now in default of this Admiralty proceeding and first notice of fault and demand for payment has been sent to Respondent.
3 - Respondent is exhausting his Administrative Remedies and the Complainants are "ESTOPPED" from ever controverting and arguing "within the Admiralty" in any subsequent Administrative or Judicial process. Collateral Estoppel, Estoppel by Acquiescence and Res Judicatta in this matter is taken Administratively. All violations of the Estoppel are deemed a Trespass on the Agreement/Contract.
4 - Complainant proceeded with filing and mailing the complaint with the UDRP and National Arbitration Forum after the date of being served with an International Commercial Claim within Admiralty.
5 - All parties are noticed in the nature of Federal Rules of Civil Procedure (FRCP) 9 (h) which leads to the Supplemental Rules of Admiralty that provide where a default exists and is found that a hostile presentment, written or oral, is a criminal act. Respondent is provided that within the Supplemental Rules of Admiralty, the Remedy to a hostile presentment criminal, scienter act is to file a Certificate of Exigency within the Clerk of the Court/Warrant officer who is compelled by law to issue warrants for the arrest of any and all offenders.
6 - Anyone who interferes or involves him/herself with the Admiralty claim will be joined to this claim and will be jointly and severally liable for all terms, provisions, conditions, and damages as indicated in this Administrative Specific Negative Averment. Criminal actions may also be investigated.
Respondents Exhibits consisted of the following:
Exhibit A: Receipt of mailing and acceptance.
Exhibit B: Administrative Specific Negative Averment.
Exhibit C: First Notice of Fault and Demand for Payment.
Exhibit D: Adjusted Accounting and True Bill.
Exhibit E: Email confirmations from Justin B. Bender.
This is a very unusual case. Not only has the Complainant failed to establish the elements of the Policy, the Respondent has completely ignored the Complaint and has asserted other "proceedings" that purport to estop the Complainant in this proceeding.
In an effort to understand this case, the panelist first tried to determine what other "proceedings" were being asserted by the Respondent. If in fact other legitimate court "proceedings" were concurrent with this proceeding, then a decision must be made whether or not to proceed in this forum.
Since this panelist was not familiar with the "proceedings" asserted by the Respondent, the panelist searched for "Admiralty ab initio Administrative Remedy." What was found was a web-site at "www.real-debtelimination.com/debt-elimination-toos/notive_of_international_commerci.htm." This site contained forms for the documents submitted by Respondent as Exhibit B (Administrative Specific Negative Averment), Exhibit C (First Notice of Fault and Demand for Payment), and Exhibit D (Adjusted Accounting and True Bill). This website is a debt elimination site and is not any recognized official administrative or governmental site. The file # RA483913684US referred by Respondent in its response is a First Class Registered Mail number. Interestingly, Respondent has made a demand for settlement of $1,496,500,000 from Complainant.
Being satisfied that there are no other legitimate concurrent court proceedings, the Panelist then considered the matters submitted by Complainant. The only evidence submitted in support of its claim are registrations certificates for the trademark HYTORC, a WHOIS Service printout for the <i-torc.com> domain name, a printout showing incorporation of UDRP by the Registrar, and a copy of the UDRP Policy. There is no evidence of confusion of the disputed domain name with Complainant's name. There is no evidence of Respondent's lack of legitimate rights or interests in the disputed domain name. There is no evidence of bad faith registration and use. There is no evidence of how Respondent is using the name. Complainant relies upon "information and belief" allegations without any supporting evidence. This is not sufficient under the Policy and is why the entire Complaint was set out in its entirety in this decision.
It is therefore the finding of this panelist that Complainant has failed to satisfy any of the elements of Policy Section 4(a) and therefore is not entitled to the relief requested.
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.
Having failed to establish any of the elements of the Policy, it is the decision of this Panel that the Complainant's request for relief be denied.
Having failed to established the elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.
Daniel B. Banks, Jr., Panelist
Dated: March 22, 2010
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page
National Arbitration Forum