Charon International Trading Limited v. Planet on Demand.com / Web Master
Claim Number: FA1202001428769
Complainant is Charon International Trading Limited (“Complainant”), represented by Leslie Andrew Yates, United Kingdom. Respondent is Planet on Demand.com / Web Master (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <snugg.com>, registered with Register.com, Inc.
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.
Honorable Karl V. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on February 9, 2012; the National Arbitration Forum received payment on February 9, 2012.
On February 10, 2012, Register.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <snugg.com> domain name is registered with Register.com, Inc. and that Respondent is the current registrant of the name. Register.com, Inc. has verified that Respondent is bound by the Register.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 February 22, 2012, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 13, 2012 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@snugg.com. Also on February 22, 2012, 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 March 22, 2012, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Karl V. Fink (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 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 any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant:
1. Complainant has rights in the SNUGG mark which it uses in connection with protective holder and cases, retaining straps, and stands all adapted for portable electronic equipment;
2. Complainant registered the SNUGG mark (Reg. No. 4,075,899 filed May 17, 2011; registered December 27, 2011) through the United States Patent and Trademark Office (“USPTO”);
3. Respondent registered the <snugg.com> domain name on September 14, 1999;
4. The <snugg.com> domain name is identical to Complainant’s SNUGG mark;
5. Respondent is not commonly known by the disputed domain name;
6. The <snugg.com> domain name resolves to a website which promotes products which compete with the products Complainant provides through links to Complainant’s competitors;
7. The <snugg.com> domain name is not being used for either a bona fide offering of goods or services nor a legitimate noncommercial or fair use;
8. Respondent’s registration and use of the <snugg.com> domain name are a product of bad faith;
9. Respondent registered and is using the disputed domain name to take commercial advantage of Internet users’ mistakes as to the source of the disputed domain name.
B. Respondent
Respondent did not submit a Response.
For the reasons set forth below, the Panel finds Complainant is not entitled to the relief requested.
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.
(4) 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.”).
As the Panel finds Complainant failed to satisfy Policy ¶ 4(a)(ii) (Registration and Use in Bad Faith), the Panel declines to analyze Policy ¶ 4(a)(i) and Policy ¶ 4(a)(ii). See Creative Curb v. Edgetec Int’l Pty. Ltd., FA 116765 (Nat. Arb. Forum Sept. 20, 2002) (finding that because the complainant must prove all three elements under the Policy, the complainant’s failure to prove one of the elements makes further inquiry into the remaining element unnecessary).
Registration and Use in Bad Faith
Complainant does not allege common law rights in the mark. Complainant’s trademark rights in its SNUGG mark date back to May 17, 2011. Respondent’s registration of the disputed domain name on September 14, 1999, predates Complainant’s rights in the SNUGG mark by over 11 years. There is no evidence presented that Complainant existed when the domain name was registered. Therefore, the Panel finds that Respondent did not register the disputed domain name in bad faith under Policy ¶ 4(a)(iii). See Telecom Italia S.p.A. v. NetGears LLC, FA 944807 (Nat. Arb.Forum May 16, 2007) (determining the respondent could not have registered or used the disputed domain name in bad faith where the respondent registered the disputed domain name before the complainant began using the mark); see also Aspen Grove, Inc. v. Aspen Grove, D2001-0798 (WIPO Oct. 5, 2001) (finding that it is “impossible” for the respondent to register disputed domain name in bad faith if the complainant company did not exist at the time of registration).
Complainant has not proven this element.
Complainant 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 <snugg.com> domain name REMAIN WITH Respondent.
Honorable Karl V. Fink (Ret.), Panelist
Dated: March 26, 2012
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