CH South Michigan Apartments, LLC v. Wilson Chow
Claim Number: FA1206001448747
Complainant is CH South Michigan Apartments, LLC (“Complainant”), represented by Eric J. Munoz of Scandaglia & Ryan, Illinois, USA. Respondent is Wilson Chow (“Respondent”), Illinois, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <1212southmichigan.com>, registered with ENOM, 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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on June 13, 2012; the National Arbitration Forum received payment on June 25, 2012.
On June 14, 2012, ENOM, INC. confirmed by e-mail to the National Arbitration Forum that the <1212southmichigan.com> domain name is registered with ENOM, INC. and that Respondent is the current registrant of the name. ENOM, INC. has verified that Respondent is bound by the ENOM, 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 June 26, 2012, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 16, 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@1212southmichigan.com. Also on June 26, 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 July 23, 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. 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, C H South Michigan Apartments, LLC, is a Delaware LLC with its principal place of business located in Miami, Florida.
2. Complainant is the owner of a high rise residential condominium building located at 1212 South Michigan Avenue in Chicago, Illinois (“the Property”).
3. Complainant owns the 1212 SOUTH MICHIGAN mark, including its variant, “Twelve Twelve on South Michigan,” by virtue of its acquisition of the Property in November 2011.
4. Complainant uses the 1212 SOUTH MICHIGAN mark in furtherance of its residential leasing and business operations associated with the Property.
5. Complainant has common law rights in the 1212 SOUTH MICHIGAN mark.
6. Respondent’s disputed domain name, <1212southmichigan.com>, is identical to Complainant’s 1212 SOUTH MICHIGAN mark.
7. Respondent does not have rights or legitimate interests in the disputed domain name.
8. Respondent registered and uses the disputed domain name in bad faith due to disruption.
B. Respondent
Respondent, Wilson Chow, failed to submit a Response in this proceeding.
Complainant is the owner of a high rise residential condominium building located at 1212 South Michigan Avenue in Chicago, Illinois (“the Property”). Complainant claims to own the 1212 SOUTH MICHIGAN mark by virtue of its acquisition of the Property in November 2011.
Respondent registered the disputed domain name on September 19, 2000.
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.
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.”).
Complainant asserts that since at least 2000 the 1212 SOUTH MICHIGAN mark has enjoyed a long and continuous use in connection with residential and commercial leasing operations with the Property. Complainant states that, in 2011, Complainant acquired the Property, including the <1212southmichigan.com> domain name. Complainant claims that Respondent is a former employee of Complainant’s predecessor-in-interest and that Respondent registered the disputed domain name, without Complainant’s predecessor’s knowledge, under Respondent’s personal 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 <1212southmichigan.com> domain name REMAIN WITH Respondent.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: August 4, 2012
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