national arbitration forum

 

DECISION

 

AMP Floracel v. Jean Perrin

Claim Number: FA 1358993

 

PARTIES

Complainant is AMP Floracel (“Complainant”), represented by Cindy Herd, Florida, USA .  Respondent is Jean Perrin (“Respondent”), represented by Benjamin E. Olive of Olive & Associates, P.A., Florida, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <ampfloracel.biz>, 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.

 

Bruce E. Meyerson as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum electronically on November 17, 2010; the National Arbitration Forum received payment on November 17, 2010.

 

On November 18, 2010, GoDaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <ampfloracel.biz> 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 disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).

 

On November 22, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 13, 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@ampfloracel.biz.  Also on November 22, 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 December 9, 2010.

 

On December 15, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Bruce E. Meyerson as Panelist.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

 

A.     Complainant

 

Complainant contends that the domain name is almost identical and confusingly similar to the trademark, AMP Floracel.  Complainant contends that Respondent is a competitor and is selling the same product.  Complainant states that Respondent is trying to confuse customers.  Complainant states that Respondent’s actions amount to an “unscrupulous tactic to gain business.”

 

B.     Respondent

 

Respondent states that Complainant submitted the identical complaint in 2008 and that Complaint was dismissed.  Respondent states that it registered the disputed domain name in 2006, two years before CCH Nutrition Corp., the holder of the trademark AMP Floracel, registered the trademark.

                                                                                                                                

FINDINGS

The Complaint in this matter is barred under the doctrine of res judicata.

 

DISCUSSION

 

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."

 

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.

 

Preliminary Issue: Res Judicata

 

Although not mentioned in the Complaint, Respondent has pointed out that in 2008 Complaint submitted a nearly identical complaint based on the <ampfloracel.biz> domain name.  See AMP Floracel v. Jean Perrin, FA 1229299 (Nat. Arb. Forum Dec. 8, 2008).  In that Decision, the Panel denied relief because the Complainant failed to establish a protectable right in the mark AMP Floracel.  The record in that case as found by the Panel, like the record in this case, showed that the trademark for AMP Floracel was held by CCH Nutrition Corp. (“CCH”).   In 2008, the Complaint was dismissed and relief denied under  Policy ¶ 4(a)(i) because the Complainant failed to establish either an assignment from CCH or any other basis upon which it could be determined that it had rights in the mark.  Despite the passage of two years, the Complaint in this case suffers from the same defects.  Complainant has once again failed to demonstrate any rights in the trademark, either by assignment or otherwise.

 

Generally speaking, principles of preclusion have been applied in UDRP cases.  E.g., VRSim, Inc. v. Makara, FA 1314947 (Nat. Arb. Forum Apr. 30, 2010).  The burden of establishing that a second complaint should be reconsidered is high.  See 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 is “high”).

 

Grounds customarily viewed as appropriate for reconsidering a prior ruling in litigated matters (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.  See Grove Broad. Co. Ltd. v. Telesystems Commc’ns Ltd., D2000-0703 (WIPO Nov. 10, 2000).  In contrast, panels have dismissed UDRP complaints where they have been based upon “subsequent acts that are either a repetition of, or substantially the same as, the acts on which the previous complaint was based”).  Furrytails Ltd. v. Mitchell, D2001-0857 (WIPO Sept. 6, 2001).

 

Because the claim brought by the Complainant in this case is identical to the claim raised previously, and no new grounds have been submitted to warrant reconsideration, the Complaint is dismissed based on the doctrine of res judicata

 

DECISION

Having found that the Complaint is barred by the doctrine of res judicata, the Panel concludes that relief shall be DENIED.

 

 

Bruce E. Meyerson, Panelist

Dated:  December 20, 2010

 

 

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