VRSim, Inc. v. John Makara
Claim Number: FA1003001314947
Complainant is VRSim, Inc. (“Complainant”), represented by Laura
A. Chubb, of Wiggin and Dana LLP,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <vrsim.com>, registered with Network Solutions, 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.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on March 23, 2010.
On March 23, 2010, Network Solutions, Inc. confirmed by e-mail to the National Arbitration Forum that the <vrsim.com> domain name is registered with Network Solutions, Inc. and that the Respondent is the current registrant of the name. Network Solutions, Inc. has verified that Respondent is bound by the Network Solutions, 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 March 29, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 19, 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. Also on March 29, 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 post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
A Response was received on April 20, 2010; however, the Forum deemed the Response deficient pursuant to ICANN Rule # 5(a) because it was not received electronically.
On April 26, 2010, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A. Carmody, Esq., as Panelist.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <vrsim.com> domain name is confusingly similar to Complainant’s VRSIM mark.
2. Respondent does not have any rights or legitimate interests in the <vrsim.com> domain name.
3. Respondent registered and used the <vrsim.com> domain name in bad faith.
B. Respondent did not file a timely Response and this case proceeded to determination by the Panel on a default basis.
Preliminary Issue #1: Deficient Response
Respondent’s Response was not submitted in electronic format prior to the response deadline. Thus, the National Arbitration Forum does not consider the Response to be in compliance with ICANN Rule 5(a). The Panel declines to accept and consider this Response. See Telstra Corp. v. Chu, D2000-0423 (WIPO June 21, 2000) (finding that any weight to be given to the lateness of the response is solely in the discretion of the panelist); see also Bank of Am. Corp. v. NW Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (refusing to accept Respondent’s deficient Response that was only submitted in electronic form because it would not have affected the outcome had the Panel considered it).
Preliminary Issue #2: Res Judicata
Complainant previously submitted a complaint regarding the <vrsim.com> domain name. The complaint was denied by the former panel in that case on the grounds that Complainant’s VRSIM service mark was only registered on the Supplemental Register and was therefore insufficient to show that Complainant had rights in the mark for the purposes of this Policy. Complainant also failed to allege common law rights in this prior case. In its decision, the Panel did not address whether Complainant would have leave to refile. See VRSim, Inc. v. Makara, FA 1233521 (Nat. Arb. Forum Jan. 2, 2009).
Typically, complaints may not be submitted for relief subsequent to their denial due to res judicata principles unless the complainant meets its high burden of demonstrating the need for such additional review. See, e.g., Creo Prods. Inc. v. Website in Dev., D2000-1490 (WIPO Jan. 19, 2001) (finding that the burden of establishing that a second complaint should be entertained in “high”). Several criteria have been set forth for determining whether a complaint may be refilled. See Grove Broad Co. Ltd. v. Telesystems Commc’ns Ltd., D2000-0703 (WIPO Nov. 10, 2000) (noting, and subsequently applying to the UDRP, the four common-law grounds for the rehearing or reconsideration of a previously filed decision as (1) serious misconduct on the part of a judge, juror, witness or lawyer; (2) perjured evidence having been offered to the court; (3) the discovery of credible and material evidence which could not have been reasonably foreseen or known at trial; or (4) a breach of natural justice).
Complainant in this proceeding has presented nothing that would support entertaining this second complaint. The Panel finds that this proceeding is barred by the earlier decision. See ComScope, Inc. of N.C. v. Kuehleitner, FA 1260847 (Nat. Arb. Forum June 29, 2009) (“The Panel finds that this Complaint is barred by the decrement of res judicata.”); see also Koninklijke Philips Elecs. N.V. v. Relson Ltd., DWS2002-0001 (WIPO June 14, 2002) (determining that it “should follow the consensus view that has emerged” with regard to refiled complaints and holding such refiling impermissible unless the subsequent proceeding would be appropriate under the Grove Broadcasting standards).
Accordingly, the Panel concludes that relief shall be DENIED.
James A. Carmody, Esq., Panelist
Dated: April 30, 2010
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