David H. Pratt d/b/a Solar Mart v. Mushka
Claim Number: FA1202001429169
Complainant is David H. Pratt d/b/a Solar Mart (“Complainant”), Massachusetts, USA. Respondent is Mushka (“Respondent”), represented by Jenny Schneider, Florida, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <solarmart.com>, registered with Dynadot.
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.
Fernando Triana, Esq. as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on February 12, 2012; the National Arbitration Forum received payment on February 12, 2012.
On February 16, 2012, Dynadot confirmed by e-mail to the National Arbitration Forum that the <solarmart.com> domain name is registered with Dynadot and that Respondent is the current registrant of the name. Dynadot has verified that Respondent is bound by the Dynadot 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 17, 2012, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 8, 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@solarmart.com. Also on February 17, 2012, 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 March 7, 2012.
Complainant’s Additional Submission was received on March 11, 2012 and in compliance with Supplemental Rule 7.
On March 16, 2012, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Fernando Triana, Esq. 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
The Complaint is based on the Complainant’s use and ownership of the mark SOLAR MART in the United States of America since March 30, 2005, to identify online journals (blogs) relating to solar resources and projects.
Complainant’s main contentions are as follows:
1. Complainant owns the domain name <solarmart.net>, which reverts to the Solar Mart blog. This blog is part of a business plan “to develop an increasing web presence” and it will “evolve into a solar products vendor website”.
2. Respondent acquired the disputed domain name <solarmart.com> on or approximately on November 1, 2007.
3. The domain name <solarmart.com> includes the Complainant’s registered mark SOLAR MART in its entirety, thus they are identical “in sound, appearance and connotation”.
4. Respondent lacks of rights or legitimate interests in respect of the domain name <solarmart.com> since i) Respondent is a domain name development and marketing company, which is not a bona fide offering of goods or services, ii) Respondent’s solarmart.com website is designed to generate advertising revenue, causing consumer confusion by cyber squatting, and iii) Respondent does not have and has not ever had a company known by the Solar Mart name.
5. Respondent acquired the domain name <solarmart.com> when Complainant’s mark was clearly visible on the first page of all search engines’ results.
6. Respondent used the false name “Mushka” to register the disputed domain name, yet “Mushka” is not a registered business name in the State of Florida, USA, and is not a publicly listed entity, business or person.
7. Complainant sent a first cease and desist letter to Respondent on October 21, 2008. Complainant received a response on November 6, 2008 from Respondent, who identified himself as “S. Schneider, Mushka LLC”. In this response, Respondent acknowledge receipt of Complainant’s cease and desist letter and anticipated a further communication from the legal department to be sent to Complainant’s attention.
8. Complainant sent a second letter to Respondent on January 2, 2012 demanding the immediate removal of all content from the website solarmart.com. Right after, Semion Schneider called Complainant from the LeadsYou.com phone number, and offered to sell the disputed domain name <solarmart.com> to Complainant for USD$10,000.00.
9. Therefore, Respondent’s true identity is Mushka a.k.a. Semion Schneider dba LeadsYou.com.
B. Respondent
Respondent referred to Complainant’s contentions as follows:
1. Complainant’s registered mark entitles its owner to prevent third parties only from using it in connection with a blog. However, the website solarmart.com does not provide a blog or an online journal; it rather is a solar business directory.
2. Respondent purchased the domain name <solarmart.com> on November 1, 2007, aiming to develop an online and shopping platform for solar related business. The domain name <solarmart.com> comprises exactly the “right combination of words for this directory: ‘solar’ for the obvious reasons and ‘mart’ as market (bazaar/center)”. Right after the domain name’s purchase, Respondent developed the website <solarmart.com>. Therefore, Respondent has been engaged in the development and operation of the business located at the website to which the disputed domain name reverts to.
3. Complainant acquired his domain name <solarmart.net> on approximately October 22, 2008, that is, a year after Respondent acquired the disputed domain name.
4. Respondent never offered to sell the disputed domain name to Complainant.
5. Respondent is Media J, LLC, represented by Jenny Schneider. Semion Schneider has no relation with Respondent’s business; he is simply Ms. Schneider’s father.
6. Respondent contacted an attorney upon receiving Complainant’s letter dated January 2, 2012 and responded to Complainant’s letter through said attorney on March 16, 2012.
C. Complainant’s Additional Submission
1. There is no factual basis to assert Jenny Schneider as Respondent in this case.
2. Jenny Schneider has not shown evidence to prove that Media J. LLC is the owner of the disputed domain name.
3. Complainant’s use of the SOLAR MART mark predates Respondent’s use of the disputed domain name <solarmart.com> by more than three years.
Complainant submitted on March 12, 2012 a request before the National Arbitration Forum to immediately withdraw the Complaint.
Paragraph 12 of the National Arbitration Forum’s Supplemental Rules regulates the effects of a withdrawal request depending on the administrative proceeding’s stage at which it is submitted:
12. Withdrawal
(a) Prior to Commencement
(i) Before the five (5) Calendar Day deficiency period described in Rule 4(b) expires, the Complainant may withdraw the Complaint without prejudice. A withdrawal request must be Submitted to the Forum in writing and signed by the Complainant; an electronic signature complying (refer to Annex A) will be accepted. Upon the Forum’s receipt of the withdrawal request, the Complaint will be withdrawn without prejudice and the administrative proceeding will be terminated.
(ii) The Complainant may re-initiate a proceeding, which was properly withdrawn pursuant to Supplemental Rule 12(a)(i), within thirty (30) Calendar Days. A re-initiation fee of $100 must accompany the request to re-initiate the proceeding.
(iii) If the Complaint was withdrawn pursuant to Supplemental Rule 12(a)(i) and if the Complainant does not re-initiate the Complaint at the end of thirty (30) Calendar Days, a subsequent Complaint will be treated as a new Complaint and must be accompanied by payment of the appropriate fees.
(b) After Commencement and Prior to Response:
(i) After commencement, but before the Forum has received a Response that complies with Supplemental Rule 5, the Complaint may be withdrawn by the Complainant. A withdrawal request must be Submitted to the Forum in writing and signed by the Complainant; an electronic signature (refer to Annex A) will be accepted. A Complaint dismissed by the Forum pursuant to Supplemental Rule 12(b)(i) will be dismissed without prejudice.
(ii) After commencement, but before the Forum has received a Response that complies with Supplemental Rule 5, the Complaint may be withdrawn pursuant to a joint request made by both parties. A withdrawal request must be Submitted to the Forum in writing and signed by both Parties; electronic signatures (refer to Annex A) will be accepted. A Complaint dismissed by the Forum pursuant to Supplemental Rule 12(b)(ii) will be dismissed with prejudice.
(c) After Response is Received: After a Response that complies with Supplemental Rule 5 has been received by the Forum, but before a Panel decision is published, the Complaint may be withdrawn if both parties agree to the withdrawal. A withdrawal request must be Submitted to the Forum in writing and signed by both parties; electronic signatures (refer to Annex A) will be accepted. A Complaint dismissed by the Forum pursuant to Supplemental Rule 12(c) will be dismissed with prejudice.
(d) The Complaint cannot be withdrawn after a Panel decision is published. (Underlining is mine).
Since the withdrawal request was submitted after the Respondent’s response was received by the Forum but before the Panel decision was published, it needed to be signed by both parties. Given the withdrawal request’s failure to meet this requirement, the Forum did not grant it.
However, this Panel believes that the Complainant’s attempt to withdraw the complaint is a clear expression of his lack of interest in the disputed domain name and the administrative proceeding’s outcome. The Panel therefore, concludes that Respondent will not oppose said withdrawal. Even if the supplemental rules state a time and a manner in which said withdrawal request must have been submitted, the Panel cannot ignore the Complainant’s will: Whereas his initial will to get the domain name <solarmart.com> transferred was this proceeding’s raison d’etre, his ultimate disinterest in the disputed domain name justifies this proceeding’s termination.
Rule 17 of the UDRP Rules allows the Panel to terminate an administrative proceeding when its continuation becomes unnecessary:
(a) If, before the Panel's decision, the Parties agree on a settlement, the Panel shall terminate the administrative proceeding.
(b) If, before the Panel's decision is made, it becomes unnecessary or impossible to continue the administrative proceeding for any reason, the Panel shall terminate the administrative proceeding, unless a Party raises justifiable grounds for objection within a period of time to be determined by the Panel. (underline added).
The Panel orders the proceeding to be immediately terminated, due to the unilateral withdrawal of these proceedings by the Complainant, which is interpreted by the Panel as his lack of interest in recovering the domain name <solarmart.com>.
Fernando Triana, Esq., Panelist
Dated: March 28, 2012
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