Unex Corporation v. Josh
Schmidt
Claim Number: FA1001001304075
PARTIES
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.
PANEL
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.
PROCEDURAL HISTORY
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 postmaster@i-torc.com 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.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. 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
NAMES
WORLDWIDE2
Registrar
Address: Level 2,
Telephone
Number: 61 3 8624 2400
E-Mail
Address: help@melbourneit.com.au
[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:
[i.]
Hytorc
USPTO
Registration No.: 1260784
USPTO
Serial No.: 73295220
Description:
Power Industrial Maintenance Tools-Namely, Power
Wrenches
and Parts Thereof
[ii.]
Hytorc
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.
REMEDY SOUGHT
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.
B. Respondent
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.
FINDINGS
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.
DISCUSSION
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.
DECISION
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
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