Paul Kim / ESI Canton LLC v. David Epstein
Claim Number: FA1008001340353
PARTIES
Complainant is Paul Kim / ESI Canton LLC (“Complainant”), represented by Paul Kim, of THE KIM FIRM LLC, Georgia, USA. Respondent is David Epstein (“Respondent”), Georgia, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <earthsolutions.com>, registered with Godaddy.com, Inc.
PANEL
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.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum electronically on August 11, 2010.
On August 12, 2010, Godaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <earthsolutions.com> domain name is registered with Godaddy.com, Inc. and that the 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 August 19, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 8, 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@earthsolutions.com. Also on August 19, 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 September 7, 2010.
On September 20, 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.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
Complainant states that it purchased the assets of Earth Solutions, LLC, Earth
Solutions, Inc., and The Jewelry Academe, Inc., on or about March 18, 2010; that Respondent acted as the authorized representative of those entities; and that “the website earthsolutions.com” was included in the assets purchased in that transaction. Complainant alleges that Respondent failed to transfer the disputed domain name <earthsolutions.com> to Complainant at that time, and that beginning on or about August 10, 2010, Respondent caused the domain name to redirect users to a web page stating that the website <earthsolutions.com> was closed due to a legal dispute. Complainant alleges that Respondent’s businesses “were no longer in need of the website” following the sale of assets to Complainant, and that Respondent’s actions represent a bad faith effort to disrupt and injure Complainant’s business. In support of its allegations, Complainant provides a copy of the bill of sale for the transaction described above, and specimens of the website to which the disputed domain name resolved before and after August 10, 2010.
B. Respondent
Respondent denies that the sale of assets was consummated, contending that the purchase price was never received from Complainant.
FINDINGS
The Panel finds that Complainant has failed to prove that the domain name is identical or confusing similar to a trademark or service mark in which Complainant has rights.
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.
Complainant has not made any claim of trademark or service mark rights, nor submitted any evidence of such rights, nor identified any mark to which the disputed domain name is claimed to be identical or confusingly similar. Accordingly, the Panel finds that Complainant has failed to meet its burden of proof as to the first element set forth in Paragraph 4(a) of the Policy. (The Panel notes that the initial version of the Complaint stated “n/a” in the section corresponding to this element. After receiving a letter from the Forum pointing out that the Complaint failed to address all three of the required elements, Complainant submitted an amended Complaint that still contained no references to trademark or service mark rights.)
Because the Panel’s finding on the first element is dispositive of the dispute, the Panel declines to address the other elements set forth in Paragraph 4(a) of the Policy.
DECISION
Having considered the elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.
David E. Sorkin, Panelist
Dated: October 7, 2010
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