Taeho Kim v. Skelton Logic
Claim Number: FA1002001305934
Complainant is Taeho Kim (“Complainant”),
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <recent.net>, <they.net> and <than.net> registered with GoDaddy.com, 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.
Alan L. Limbury, as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on February 2, 2010. With its Complaint, Complainant also chose to proceed entirely electronically under the new Rules for Uniform Domain Name Dispute Resolution Policy (“Rules”) and the new Forum’s Supplemental Rules for Uniform Domain Name Disputed Resolution Policy (“Supplemental Rules”) by submitting an “opt-in” form available on the Forum’s website.
On February 3, 2010, GoDaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <recent.net>, <they.net> and <than.net> domain names are registered with GoDaddy.com, Inc. and that the Respondent is the current registrant of the names. GoDaddy.com, Inc. has verified that Respondent is bound by the GoDaddy.com, 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”).
Complainant submitted an Amended Complaint to the National Arbitration Forum electronically on or about February 26, 2010.
On March 1, 2010, the Forum served the Amended Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 22, 2010 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to email@example.com, firstname.lastname@example.org, and email@example.com. Also on March 1, 2010, the Written Notice of the Complaint, notifying Respondent of the email addresses served and the deadline for a Response, 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
A timely Response was received and determined to be complete on March 4, 2010. Respondent chose to opt-in to the electronic process with its submission and submitted its Response in electronic copy only.
On March 12, 2010, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Alan L. Limbury as Panelist.
Complainant requests that the domain names be transferred from Respondent to Complainant.
Complainant says he purchased the domain names <recent.net>, <they.net> and <than.net> from escrow.com on June 30, 2009. His GoDaddy.com account was hacked into on December 18, 2009 and the domain names were sold to a third party and re-sold to Respondent. Thus, Complainant alleges that Respondent purchased stolen domain names. Other domain names stolen at the same time were returned to Complainant by the Registrar but because the WHOIS information in relation to the three disputed domain names had been changed, the Registrar has been unable to assist Complainant in recovering them.
The Complaint is based on Complainant’s ownership of the domain names and his stated intention to use the marks RECENT.NET, THEY.NET and THAN.NET in the future, even though he does not have a trademark or service mark corresponding to any of the domain names. Complainant says Respondent has no rights or legitimate interests in the disputed domain names, which Complainant says were registered and are being used in bad faith.
Respondent denies Complainant’s allegations and says it is entitled to the disputed domain names because on December 20, 2009, Respondent purchased them, together with others, for $US1,000, via the popular website and domain marketplace flippa.com, which verified the seller by telephone. Respondent contacted the email addresses listed in the WHOIS to verify that Respondent was dealing with the owner and also used an escrow service to effect the transaction. On January 8, 2010 the transfer was complete, the domain names were in Respondent’s GoDaddy account and the WHOIS was updated with Respondent’s correct details.
Respondent says it had no reason to suspect that the domain names may have been stolen. It says Complainant has not demonstrated any trademark rights related to the domain names. Therefore, in trademark terms, Complainant has no more right to the domain names than anyone else. The Forum is not the appropriate venue for dealing with cases of theft.
Complainant has failed to establish the elements entitling him to relief.
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.
The Policy is not designed to address cases of theft of domain names, whether brought against the alleged thief or against a subsequent purchaser.
Complainant has no trademark rights
Complainant concedes that he has no trademark or service mark rights and relies solely on his prior registration of the domain names and his stated intent to use marks corresponding to the domain names in the future. Given the generic nature of the second level domains, “recent,” “they” and “that,” the mere acquisition by Complainant of the disputed domain names cannot possibly give rise to trademark rights in RECENT.NET, THEY.NET or THAT.NET. Nor can intent to use give rise to trademark rights.
It follows that this Complaint must fail because Complainant has no trademark rights. It is unnecessary to consider the other elements.
Having failed to establish all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.
Alan L Limbury, Panelist
Dated: March 22, 2010
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