Bluemile, Inc. v. Barry McCockin
Claim Number: FA1110001411110
Complainant is Bluemile, Inc. (“Complainant”), represented by David A. Ferris of The Ferris Law Group LLC, Ohio, USA. Respondent is Barry McCockin (“Respondent”), Nevada, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bluemile.net>, 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.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on October 12, 2011; the National Arbitration Forum received payment on October 12, 2011.
On October 13, 2011, GoDaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <bluemile.net> 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 October 19, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 8, 2011 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@bluemile.net. Also on October 19, 2011, the Written Notice of the Complaint, notifying Respondent of the e-mail 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 November 18, 2011, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Sandra J. Franklin 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 Electronic and Written Notices, as defined in Rule 1 and Rule 2. 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 a response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <bluemile.net> domain name is identical to Complainant’s BLUEMILE mark.
2. Respondent does not have any rights or legitimate interests in the <bluemile.net> domain name.
3. Respondent registered and used the <bluemile.net> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Bluemile, Inc., is an Internet technology services company offering, inter alia, data center services, cloud computing services, and VoiP services.
Complainant owns a trademark registration with the United States Patent and Trademark Office (“USPTO”) for the BLUEMILE mark (Reg. No. 3,047,712 filed June 8, 2004; registered January 24, 2006). Complainant uses the mark as its brand name in the Internet technology services industry.
Respondent, Barry McCockin, registered the disputed domain name on June 28, 2005. The disputed domain name resolves to a website offering criticism and complaints associated with Complainant’s business.
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.
Preliminary Issue: Concurrent Court Proceeding
Complainant provides evidence of ongoing litigation between Complainant and YourColo LLC involving the <bluemile.net> domain name in the United States District Court in Ohio, Case No. 2:11-cv-497. Complainant includes a copy of a preliminary injunction order that directly references the <bluemile.net> domain name and relates to Respondent’s current use of the domain name. While Respondent is not a named defendant in the case and is not listed as a representative of a named defendant, Complainant claims that a representative of the named defendant transferred the domain name to Respondent in an attempt to circumvent the court order. It is appropriate that this issue be revisited and resolved within the court proceeding. See AmeriPlan Corp. v. Gilbert FA105737 (Nat. Arb. Forum Apr. 22, 2002) (Regarding simultaneous court proceedings and UDRP disputes, Policy ¶ 4(k) requires that ICANN not implement an administrative panel’s decision regarding a UDRP dispute “until the court proceeding is resolved.” Therefore, a panel should not rule on a decision when there is a court proceeding pending because “no purpose is served by [the panel] rendering a decision on the merits to transfer the domain name, or have it remain, when as here, a decision regarding the domain name will have no practical consequence.”). Therefore, the Panel dismisses the Complaint, without prejudice.
Based on the concurrent court proceedings, the Panel concludes that relief shall be DENIED WITHOUT PREJUDICE.
Accordingly, it is Ordered that the <bluemile.net> domain name REMAIN WITH Respondent.
Sandra J. Franklin, Panelist
Dated: November 28, 2011
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page