Exosun SAS v. Domain Administrator
Claim Number: FA1005001325644
Complainant is Exosun SAS (“Complainant”), represented by Frederic
Conchy,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <exosun.com>, registered with GoDaddy.com, Inc..
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Honorable Paul A. Dorf (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on May 20, 2010.
On May 20, 2010, GoDaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <exosun.com> domain name is registered with GoDaddy.com, Inc. and that Respondent is the current registrant of the name. 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").
On May 25, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 14, 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 postmaster@exosun.com. Also on May 25, 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.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On June 18, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Paul A. Dorf (Ret.) 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" through submission of a Written Notice, as defined in Rule 1. 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 <exosun.com> domain name is identical to Complainant’s EXOSUN mark.
2. Respondent does not have any rights or legitimate interests in the <exosun.com> domain name.
3. Respondent registered and used the <exosun.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Exosun SAS, owns the <exosun.fr> domain name. Complainant holds a trademark registration with the United States Patent and Trademark Office (“USPTO”) for the EXOSUN mark (e.g., Reg. No. 3,531,160 registered on November 11, 2008).
Respondent, Domain Administrator, registered the <exosun.com> domain name on January 7, 2006. The disputed domain name resolves to a website that is blank except for the text “exosun.com homepage Copyright (c) 2006-2010 by exosun.com, ALL RIGHTS RESERVED.”
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.
Complainant asserts rights in the EXOSUN mark through its registration of this mark with the USPTO (e.g., Reg. No. 3,531,160 registered on November 11, 2008). The Panel finds this registration with the USPTO sufficiently establishes Complainant’s rights in the EXOSUN mark pursuant to Policy ¶ 4(a)(i). See AOL LLC v. Interrante, FA 681239 (Nat. Arb. Forum May 23, 2006) (finding that where the complainant had submitted evidence of its registration with the USPTO, “such evidence establishes complainant’s rights in the mark pursuant to Policy ¶ 4(a)(i).”); see also Expedia, Inc. v. Tan, FA 991075 (Nat. Arb. Forum June 29, 2007) (“As the [complainant’s] mark is registered with the USPTO, [the] complainant has met the requirements of Policy ¶ 4(a)(i).”).
Complainant contends Respondent’s <exosun.com> domain name is identical to its EXOSUN mark. Respondent incorporates Complainant’s mark in its entirety and then merely affixes the generic top-level domain (“gTLD”) “.com” to the mark in the disputed domain name. The Panel finds the addition of a gTLD does not render the disputed domain name distinct from Complainant’s mark. See Pomellato S.p.A v. Tonetti, D2000-0493 (WIPO July 7, 2000) (finding <pomellato.com> identical to the complainant’s mark because the generic top-level domain (gTLD) “.com” after the name POMELLATO is not relevant); see also SCOLA v. Wick, FA 1115109 (Nat. Arb. Forum Feb. 1, 2008) (concluding that “the domain name at issue is identical to [the] complainant’s SCOLA mark, as the only alteration to the mark is the addition of the generic top-level domain “.com.”). Therefore, the Panel finds Respondent’s <exosun.com> domain name is identical to Complainant’s EXOSUN mark.
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
According to Policy ¶ 4(a)(ii), Complainant must first make a prima facie case showing Respondent lacks rights and legitimate interests in the <exosun.com> domain name. The burden then shifts to Respondent to prove it has rights or legitimate interests in the disputed domain name. The Panel may view Respondent’s failure to submit a Response as evidence that Respondent lacks rights or legitimate interests in the disputed domain name. See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding the “complainant must first make a prima facie case that [the] respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii), and then the burden shifts to [the] respondent to show it does have rights or legitimate interests.”); see also Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002) (“[B]ased on Respondent's failure to respond, it is presumed that Respondent lacks all rights and legitimate interests in the disputed domain name.”). Despite Respondent’s failure to respond, the Panel will review the record to determine whether Respondent has rights or legitimate interests in the disputed domain name under Policy ¶ 4(c).
Complainant asserts Respondent does not use the disputed domain name for any purpose, commercial or noncommercial. However, Complainant fails to provide evidence to support these claims. Therefore, the Panel finds Complainant’s statements amount to self-serving allegations. Accordingly, the Panel finds Complainant fails to make a prima facie case showing Respondent lacks rights or legitimate interests in the <exosun.com> domain name. See Terminal Supply, Inc. v. HI-LINE ELECTRIC, FA 746752 (Nat. Arb. Forum Aug. 24, 2006) (holding that the complainant did not satisfactorily meet its burden and as a result found that the respondent had rights and legitimate interests in the domain name under Policy ¶ 4(a)(ii)); see also Graman USA Inc. v. Shenzhen Graman Indus. Co., FA 133676 (Nat. Arb. Forum Jan. 16, 2003) (finding that absent a showing of any facts by the complainant that establish the respondent lacks rights or legitimate interests in the disputed domain name, the panel may decline to transfer the disputed domain name).
The Panel finds Complainant has not satisfied Policy ¶ 4(a)(ii).
Complainant alleges Respondent is cybersquatting the disputed domain name for the purpose of selling the domain name registration. Once again, Complainant does not submit evidence in support of its claim. Therefore, the Panel finds Complainant has not established that Respondent registered and used the disputed domain name in bad faith. See Starwood Hotels & Resorts Worldwide, Inc. v. Samjo CellTech.Ltd, FA 406512 (Nat. Arb. Forum Mar. 9, 2005) (finding that the complainant failed to establish that respondent registered and used the disputed domain name in bad faith because mere assertions of bad faith are insufficient for a complainant to establish Policy ¶ 4(a)(iii)); see also Graman USA Inc. v. Shenzhen Graman Indus. Co., FA 133676 (Nat. Arb. Forum Jan. 16, 2003) (finding that general allegations of bad faith without supporting facts or specific examples do not supply a sufficient basis upon which the panel may conclude that the respondent acted in bad faith).
The Panel finds Complainant has not satisfied Policy ¶ 4(a)(iii).
Having failed to establish all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.
Accordingly, it is Ordered that the <exosun.com> domain name REMAIN with Respondent.
Honorable Paul A. Dorf (Ret.), Panelist
Dated: June 30, 2010
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page
National
Arbitration Forum