Melanie Greenstein v. EMT Agency c/o Shelly Justice
Claim Number: FA1006001329849
Complainant is Melanie Greenstein (“Complainant”), represented by Daniel
T. Gholston, of
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <eventmodelandtalent.com>, registered with Register.com.
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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on June 14, 2010.
On June 15, 2010, Register.com confirmed by e-mail to the National Arbitration Forum that the <eventmodelandtalent.com> domain name is registered with Register.com and that the Respondent is the current registrant of the name. Register.com has verified that Respondent is bound by the Register.com 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 June 17, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 7, 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 firstname.lastname@example.org. Also on June 17, 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 timely Response was received and determined to be complete on July 7, 2010.
On July 15, 2010, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed David E. Sorkin as Panelist.
Complainant requests that the domain name be transferred from Respondent to Complainant.
Complainant operates an agency for tradeshow and event staffing and related services, entitled Event Models and Talent, LLC. Complainant formed this agency in or around August 2008, and registered the domain name <eventmodelsandtalent.com> in June 2008. Complainant asserts that she has a protectable interest in the name and mark EVENT MODELS AND TALENT, notwithstanding that it has not been registered as a trademark. In support of this assertion, Complainant states that her website features this mark on every page, that she frequently attends events and tradeshows to promote her agency and establish the mark within the industry, that the mark is used in a PowerPoint presentation that she distributes to potential clients and on annual holiday cards that she sends, that she has undertaken other efforts to develop her reputation and goodwill, and that as a result of these efforts, her agency has become “one of the nation’s largest agencies” of its kind.
Complainant further states that she formerly was employed by Respondent, and that Respondent subsequently engaged in a “systematic practice designed to undermine” Complainant and her agency. Complainant alleges that in furtherance of this scheme, Respondent registered the disputed domain name <eventmodelandtalent.com>, which is identical to Complainant’s domain name but for the omission of the letter “s”, in February 2010 using a pseudonym or proxy to conceal Respondent’s identity. Complainant contends that this registration represents an instance of “typosquatting,” intended to divert Complainant’s customers and potential customers to Respondent’s website. Complainant asserts that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in the domain name; and that the domain name was registered and is being used in bad faith.
Respondent disputes many of Complainant’s allegations, including Complainant’s claim of trademark rights in EVENT MODELS AND TALENT.
The Panel finds that Complainant has failed to sustain her burden of proving that the disputed domain name is identical or confusingly similar to a mark in which Complainant has rights.
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.
In a proceeding brought under the Policy
based upon a claim of common-law rights in an unregistered mark, the
complainant must show that the claimed mark has become a distinctive identifier
associated with the complainant or its goods and services. See,
e.g., Mt. Vernon Mills, Inc. v.
In the Panel’s view, the evidence offered by Complainant is insufficient to demonstrate the requisite trademark rights, particularly given the descriptive nature of the claimed mark. The Panel therefore finds that Complainant has failed to sustain its burden of proof as to the first element set forth in Paragraph 4(a) of the Policy.
As the Panel’s conclusion on this issue is dispositive of the present dispute, the Panel declines to address the other elements set forth in Paragraph 4(a).
Having considered the elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.
David E. Sorkin, Panelist
Dated: July 28, 2010
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