Southern California Pomeranian Rescue, Inc. v. Jacqueline Clemens
Claim Number: FA1204001438950
Complainant is Southern California Pomeranian Rescue, Inc. (“Complainant”), represented by Leesa Molina, California, USA. Respondent is Jacqueline Clemens (“Respondent”), represented by Krystal Clemens, California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <southerncaliforniapomeranianrescue.com>, registered with Godaddy.com, LLC.
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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on April 11, 2012; the National Arbitration Forum received payment on April 11, 2012.
On April 12, 2012, Godaddy.com, LLC confirmed by e-mail to the National Arbitration Forum that the <southerncaliforniapomeranianrescue.com> domain name is registered with Godaddy.com, LLC and that Respondent is the current registrant of the name. Godaddy.com, LLC has verified that Respondent is bound by the Godaddy.com, LLC 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 April 16, 2012, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 28, 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@southerncaliforniapomeranianrescue.com. Also on April 16, 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 May 8, 2012.
On May 11, 2012, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
B. Respondent
Complainant is a 501(c)(3) charitable organization incorporated in California, established and in continuous operation since late 2008 as a non-profit dog rescue organization. The mark, SOUTHERN CALIFORNIA POMERANIAN RESCUE, appears on Complainant's facebook page, articles of incorporation, registration with the State of California Attorney General's office, website, Internet blogs, printed materials such as handouts, brochures, banners and signs, and contact information with all animal shelters and animal welfare organizations throughout California. Complainant also has a pending application for Federal Trademark Registration with the U.S. Patent and Trademark Office. Complainant’s trade mark application for the SOUTHERN CALIFORNIA POMERANIAN RESCUE mark lists first use as “[a]t least as early as 02/09/2009.” On June 11, 2009, Complainant obtained a federal employer identification number retroactive to 12/09/08. Complainant has developed good will and public association with the SOUTHERN CALIFORNIA POMERANIAN RESCUE mark;
Respondent registered the <southerncaliforniapomeranianrescue.com> domain name on February 25, 2009. Respondent served as a volunteer for Complainant from about December 9, 2008 to September 1, 2011. Respondent severed her relationship with Complainant and established a new, completely separate animal rescue organization as of September 9, 2011 under the name, Compassion for Canines, Inc. Following Respondent’s separation from Complainant’s organization, Respondent took down her website which she operated as a courtesy to Complainant. Respondent used the <southerncaliforniapomeranianrescue.com> domain name through early October, 2011.
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.
As the Panel concludes that Complainant has not satisfied the third element of bad faith registration and use, Policy ¶ 4(a)(iii), the Panel declines to analyze the other two elements of the Policy. See Creative Curb v. Edgetec Int’l Pty. Ltd., FA 116765 (Nat. Arb. Forum Sept. 20, 2002) (concluding 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).
As Complainant has not shown bad faith registration and use under Policy ¶ 4(a)(iii), the Panel declines to analyze the second element of rights or legitimate interests.
Respondent was a volunteer with Complainant’s organization from about December 9, 2008 to September 1, 2011. During the time Respondent was a volunteer for Complainant, she registered the <southerncaliforniapomeranianrescue.com> domain name on February 25, 2009, presumably for Complainant’s benefit as Respondent operated the domain name as a courtesy to Complainant. Because of the prior relationship between the parties, Complainant has the burden of describing the relationship and the circumstances under which the domain name was registered and used. Complainant has failed to make this showing. See Schneider Electronics GmbH v. Schneider UK Ltd., D2006-1039 (WIPO October 21, 2006) (long-standing commercial relationship of the parties required Complainant to provide full disclosure of the history of the relationship). Furthermore, a reasonable inference that the Panel can draw from the sketchy facts is that Respondent had Complainant’s explicit permission to register and use the domain name. Therefore, Respondent did not have the requisite bad faith when she registered and used the domain name. See Green Tyre Company Plc. v. Shannon Group, Case No. D2005-0877 (WIPO October 5, 2005) (because of Complainant’s explicit permission for registration of the domain name, Respondent did not have the requisite bad faith when it registered the domain name).
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 <southerncaliforniapomeranianrescue.com> domain name REMAIN WITH Respondent.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: May 29, 2012
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