NYX, Los Angeles Inc. v. Leandros Liasides
Claim Number: FA1301001478188
Complainant is NYX, Los Angeles Inc. (“Complainant”), represented by Patchen M. Haggerty of Dorsey & Whitney LLP, Washington, USA. Respondent is Leandros Liasides (“Respondent”), United Kingdom.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <iamnyx.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 Honourable Neil Anthony Brown QC as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on December 31, 2012; the National Arbitration Forum received payment on January 2, 2013.
On January 2, 2013, GoDaddy.com, LLC confirmed by e-mail to the National Arbitration Forum that the <iamnyx.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 January 3, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 23, 2013 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@iamnyx.com. Also on January 3, 2013, 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 formal response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On January 28, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed The Honourable Neil Anthony Brown QC as Panelist.
On January 29, 2013 the Panel issued a Procedural Order to the parties requesting further evidence.
In response to the Procedural Order of the Panel, Respondent made a further submission on February 4, 2013.
Complainant did not respond to the Order, but on February 5, 2013, applied to the Panel for permission to withdraw the proceeding.
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
Complainant alleges:
1. Complainant first used its NYX mark in commerce in connection with cosmetics as early as 1999 and has continuously used it since that time.
2. Complainant owns registrations with the United States Patent and Trademark Office (“USPTO”) for the NYX mark. (Reg. No. 3,310,409 registered Oct. 16, 2007).
3. Respondent’s <iamnyx.com> disputed domain name is confusingly similar to Complainant’s NYX mark.
4. Respondent’s <iamnyx.com> domain name contains Complainant’s NYX mark in its entirety with the addition of the generic pronoun and verb “i am” and the generic top-level domain (“gTLD”) “.com.”
5. Complainant has no rights or legitimate interests in the disputed domain name.
6. Respondent is not commonly known by the <iamnyx.com> domain name and Complainant has never authorized Respondent to use its NYX mark.
7. Respondent is not using the <iamnyx.com> domain name in connection with a bona fide offering of goods or services.
8. Respondent’s resolving website features third-party click-through links, some of which compete with Complainant.
9. Respondent’s <iamnyx.com> domain name has been registered and is being used in bad faith because Respondent registered the disputed domain name without any bona fide basis in an attempt to capitalize unfairly on the goodwill of Complainant’s NYX mark.
10. Respondent is presumably collecting revenue through its resolving website featuring pay-per-click links.
11. In light of the fame and notoriety of Complainant’s NYX mark, it is inconceivable that Respondent could have registered the disputed domain name without actual knowledge of Complainant’s rights in the mark, which constitutes evidence of bad faith under Policy ¶ 4(a)(iii).
B. Respondent
Respondent failed to submit a formal Response in this proceeding. However, on January 3, 2013, Respondent wrote to the Forum, formal parts omitted, in the following terms:
“I
am not registered to the forum, is this a must to dispute the claims made
against my domain?
I have also read through the complaint and points these are merely a few i have
already found to be completely FALSE by the complainant.
5biii - It is a name in ancient greek mythology, my only reference to this is
for a music stage name which i am known by.
5biiii - the domain dose not host any material, it is simply for a personal
email address. No website is present that is in any way connected to me as
clearly stated at the head of the page!
The domain is being parked by godaddy.com and is clearly not being used for
personal gain on a pay per click basis as claimed by the complainant.
5bv - again the "presumtion" it is being used to gain revenue is
false, no pay per click is presetn again it is a parked domain by go daddy, no
content is active it is mearly a domain name used for direct emails. No personal
gain or malicious acts are present and the presumption is false/inacurate and
miss-informed.
5ciii - Their is no content being hosted by the respondent at the domain
"iamnyx.com", it is a godaddy parked page clearly stated again at the
head of the page.
I would apreciate some direction on the matter.
Leandros Liasides.”
In response, the Forum advised Respondent of his rights, which led to the Panel
making the Procedural Order referred to above.
C. Additional Submissions
In response to the Procedural Order of the Panel referred to above, Respondent made a further submission on February 4, 2013, the contents of which will be referred to later in this decision.
Complainant did not respond to the Procedural Order, but on February 5, 2013, applied to the Panel for permission to withdraw the proceeding.
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.”).
THE PROCEDURAL ORDER OF THE PANEL DIRECTED TO THE PARTIES ANDTHE COMPLAINANT’S APPLICATION TO WITHDRAW THE PROCEEDING
By an application dated February 5, 2013, Complainant applied to the Panel for permission to withdraw the proceeding.
Omitting formal parts the request provided as follows:
“The Complainant acknowledges that the above captioned Complaint has commenced. However, the Respondent did not file a formal Response to Complainant’s Domain Name Dispute Complaint in the above referenced case, and the Complaint defaulted on January 24, 2013. Given that the Forum has not received a Response that complies with Supplemental Rule 5, Complainant hereby requests that the Complaint be withdrawn without prejudice pursuant to Supplemental Rule 12(b)(i).”
Forum Supplemental Rule 12(b)(i) provides as follows:
“12 (b)(i) 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.”
In the opinion of the Panel, this issue may be examined under several headings.
The General Powers of the Panel
First, the Panel notes that paragraph 10 (a) of the Rules gives power to the Panel to conduct the proceeding in “such manner as it considers appropriate in accordance with the Policy and these Rules.” That is a broad, but not unlimited, power as the proceeding must be conducted judicially and subject to the provisions of the Policy and the Rules.
Secondly, the Panel is to ensure that the Parties to the UDRP case are treated with equality and that each Party is to be given a fair opportunity to present its case. See Rule 10(b). Additionally the Panel notes that it has the sole discretion to determine the “admissibility, relevance, materiality and weight of the evidence” submitted under the UDRP. See Rule 10(d). It is also clear that the Panel may order “further statements or documents” from the parties under Rule 12.
Consideration of the Request
The Panel maintains that the context in which Complainant has made this request is important. On the terms of the Request, Complainant’s case is that it is making the request because Respondent has not filed a formal Response to the proceedings and that, according to Complainant, Respondent is in default. It is that fact that is the sole reason given why the Request should be granted.
The real reason is fairly clearly the fact that Complainant’s withdrawal request was submitted after Respondent submitted “Further Statements” by Order of the Panel.
What happened was that on January 29, 2013 the Panel issued a Procedural Order to the parties that, in effect asked the parties to supply further factual information to the Panel. Formal parts omitted, the Order provided as follows:
“Pursuant to Rule 12 of ICANN’s Uniform Domain Name Dispute Resolution Policy, the Parties are hereby requested to provide the following information.
PROVISIONS OF THE ORDER DIRECTED TO THE COMPLAINANT
1. Does the Complainant, NYX, have stores or any other and, if so, what physical presence, in the United Kingdom?
2. What is the factual basis on which NYX refers in paragraph 5(c) (ii) of the Complaint to the “fame and notoriety” of the NYX trademark?
3. Is it the contention of the Complainant that the NYX trademark had acquired fame and notoriety in the United Kingdom at the time the disputed domain name was registered and, if so, on what factual basis is it so contended?
4. What is the factual basis for NYX’s submission in paragraph 5(c) (ii) of the Complaint that “it is inconceivable that Respondent could have registered the <iamnyx.com> domain name without actual knowledge of Complainant’s rights in the mark…”?
The Panel invites the Complainant to submit to the Panel any evidence it has relating to the above matters.
PROVISIONS OF THE ORDER DIRECTED TO THE RESPONDENT
1. The Respondent, Mr. Liasides, has said in correspondence to the National Arbitration Forum ( “ the NAF”) that his only reference to the expression “nyx” “ …is for a music stage name I am known by.”.
In that regard, the Panel invites Mr. Liasides to submit to the Panel any evidence he has to show that he is known as “nyx” or “iamnyx”, by whom he is so known and, in particular any documents, news reports, media references or other material to show that he is or has been known or recognised by the expression “nyx” or “iamnyx”, together with dates and sources of any such material.
2. Mr. Liasides has also said in correspondence with the NAF that the domain name in question “…is simply for a personal email address.”
In that regard, the Panel invites Mr. Liasides to submit to the Panel any evidence he has that the domain name has been used by him as an email address and the full text of that email address.
3. (a) On the date when Mr. Liasides registered the domain name was he aware of the Complainant, the NYX trademark, or NYX products?
(b) When and how did he first become aware of the Complainant, the NYX trademark, or NYX products?
GENERAL PROVISIONS OF THE ORDER
Any submissions in response to this procedural order are to be filed with the NAF by email and no later than 5pm (US Central time) on February 5, 2013.
Pursuant to Rule 10 (c) of the ICANN Rules, the Panel extends the time by which the decision should be forwarded to the NAF to February 18, 2013.
Date: January 29, 2013 By:
The Honourable Neil Anthony Brown QC
Panelist “.
Respondent replied, providing additional factual material on February 4, 2013.
Complainant has not yet replied.
However, on February 5, 2013 Complainant made its present Request for withdrawal.
Coming so close on the heels of Respondent’s further statement as it did, the inference is naturally there that it was this statement and its contents that prompted Complainant to seek to withdraw from the proceeding.
The Case for Allowing Withdrawal
The decision whether to allow the withdrawal is of course in the hands of the Panel. But it is instructive to see how the issue has been handled in prior cases.
In Pratt v. Mushka, FA 1429169 (Nat. Arb. Forum Mar. 28, 2012), the panel found, in a Response case, to allow a complainant’s request for withdrawal, even though complainant’s request failed procedurally for lack of Respondent’s approval as required, the panel found that it could terminate the proceedings under Rule 17 by stating that Rule “allows the Panel to terminate an administrative proceeding when its continuation becomes unnecessary.” Id. The panel made specific findings that complainant’s apparent lack of will to complete the proceedings under the circumstances to justify such a withdrawal. But because the complainant requested a “with prejudice” dismissal, the facts of that case are slightly different than those of the present case.
In Kohls Ill., Inc. v. Luby, FA 1481079, the panel determined, under Supplemental Rule 12(b)(i), that the Complaint should be allowed to be withdrawn. In that case, the respondent did not submit a response, but did submit correspondence alleging some defenses to the claim, after which the complainant submitted a Request to Withdraw the Complaint Without Prejudice. The panel agreed and granted the request.
Reasoning for Not Allowing Withdrawal or Proceeding with Decision
In Perkins v. Phillips, FA 1445335 (Nat. Arb. Forum July 2, 2012 the panel, in a default decision, analyzed certain aspects of the panel’s position in relation to independent investigations, and clearing up questions that the panel may have regarding the case and complainant’s claims. Specifically, the panel, under the Reverse Domain Name Hijacking section, concluded that in cases where a domain name should, based upon the evidence, remain with a respondent, found that a request for clarification to a complainant that will result in the complainant withdrawing a case is “not acceptable” in order to “protect the integrity of the UDRP process.” Id. While the facts of that case differ from those in the present case, it is clear that a panel may still refuse to allow the present matter to be withdrawn under its general panel powers and having regard to the integrity of the UDRP and the protection of the Parties.
Conclusion
Complainant’s request to withdraw is denied for the following reasons.
First, the reason advanced by Complainant is inadequate and is not a ground for withdrawal. If Respondent is in default, that would seem to be a reason why Complainant should want the proceeding to continue and to be resolved in favour of Complainant, not a reason for withdrawing the proceeding.
Secondly, Respondent, who is not represented legally in the proceeding, submitted an informal response, which although it was not a formal one, nevertheless raised some issues that could be put in Respondent’s defence. It was for that reason the Panel put further questions to him to elicit anything further that could be said in his favour, just as it put other questions to Complainant and for the same reason. As Respondent replied properly to the Order, it seems unfair to Respondent to shut him out at this stage from having a decision made on his case. To do so seems to be contrary to Rule 10 (b) which imposes on the Panel an obligation to ensure that “ the Parties are treated with equality and that each Party is given a fair opportunity to present its case.” Which the Panel regards as particularly important. It cannot be treating Respondent equally if, having complied with the Procedural Order, he should now be denied the opportunity of going to judgment and it cannot be giving him a fair opportunity to present his case if having done what the Panel asked him to do, he is now cut off from following through and finding out the consequence of the additional information he presumably went to some trouble to obtain. To shut Respondent out in the manner in effect proposed by Complainant is also contrary to the obligations of the Panel to uphold the integrity of the UDRP process and its ability to achieve a result and resolve the dispute which the Panel also regards as particularly important.
The Panel therefore denies the request for withdrawal.
Accordingly, the Panel will proceed to conduct the proceeding in the usual manner by examining the evidence and submissions of the parties.
The first question that arises is whether Complainant has a trademark or service mark on which it can rely. Complainant asserts that it has rights in the NYX mark pursuant to Policy ¶ 4(a)(i). Complainant provides evidence of its registrations with the USPTO for its NYX mark (i.e., Reg. No. 3,310,409 registered Oct. 16, 2007). Previous panels have found that evidence of registration for a given mark with a recognized trademark agency establishes rights in that given mark:Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007). The Panel notes that, to establish rights in a mark, a complainant need not register the mark in the country in which the respondent resides or operates: Renaissance Hotel Holdings, Inc. v. Renaissance Cochin, FA 932344 (Nat. Arb. Forum Apr. 23, 2007) .Accordingly, the Panel finds that Complainant has rights in the NYX mark under Policy ¶ 4(a)(i).
The second question that arises is whether the disputed domain name is identical or confusingly similar to the NYX mark. Complainant argues that it is, because it contains the entire NYX mark with the addition of the generic pronoun and verb “i am” and the generic Top Level Domain “.com.” Previous panels have found that these variations are insufficient to differentiate a disputed domain name from a registered mark as the implication from the domain name is that it is claiming that it is or is associated with the trademark: Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) and Disney Enters. Inc. v. McSherry, FA 154589 (Nat. Arb. Forum June 17, 2003).
The Panel therefore finds that Respondent’s <iamnyx.com> domain name is confusingly similar to Complainant’s NYX mark under Policy ¶ 4(a)(i).
Complainant has thus proved the first of the three elements that it must establish.
It is now well established that Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) and AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006).
By virtue of paragraph 4(c) of the Policy ¶ (c), it is open to a respondent to establish its rights or legitimate interests in a domain name, among other circumstances, by showing any of the following elements:
(i) before any notice to you [Respondent] of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you [Respondent] (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you [Respondent] are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
In the present case it is impossible to judge whether any of those elements have been made out without considering the extra evidence that has been produced as the result of the Procedural Order referred to above.
In his original submission to the Forum, his unofficial Response, Respondent relied on the following grounds to retain the domain name:
“5biii
- It is a name in ancient greek mythology, my only reference to this is for a
music stage name which i am known by.
5biiii - the domain dose not host any material, it is simply for a personal
email address. No website is present that is in any way connected to me as
clearly stated at the head of the page!
The domain is being parked by godaddy.com and is clearly not being used for
personal gain on a pay per click basis as claimed by the complainant.
5bv - again the "presumtion" it is being used to gain revenue is
false, no pay per click is presetn again it is a parked domain by go daddy, no
content is active it is mearly a domain name used for direct emails. No
personal gain or malicious acts are present and the presumption is
false/inacurate and miss-informed.
5ciii - Their is no content being hosted by the respondent at the domain
"iamnyx.com", it is a godaddy parked page clearly stated again at the
head of the page.”
Those
points, if made out, would bring Respondent within both Policy ¶ 4(c)(i),
4(c)(ii) and 4(c)(iii), as they are arguments that he was using or making
demonstrable preparations to use the domain name for a bona fide
offering of goods and services, that he is commonly known by the domain name
and that he was making a legitimate noncommercial or fair use of the domain
name. However, clearly he needed more evidence to substantiate his case and for
that reason the Panel issued the Procedural Order to find if such evidence was
available in the same way that it sought evidence that might strengthen
Complainant’s case. The Panel will now examine the additional evidence produced
by Respondent as Complainant has produced no new evidence.
Respondent replied to the Procedural Order and provided, first, a screenshot from the website www.trancescript.nl , a website devoted to music and related subjects where Respondent as a music producer was the subject of discussion. The screenshot showed the site noted that “Rob Stevenson’s Leandros Liasides better known as ‘nyx’ makes his debut release on Monster Digital with the strong and energetic track called ‘kyro’ (emphasis added). A second item produced by Respondent refers to him, apparently interchangeably, as Mr. Liasides and Nyx , with respect to the same music. A third article, from Beatport Release, says:”Monster Digital welcomes a debut appearance from Leandros Liasides also known as Nyx, with KYRO.” ( emphasis added).These three articles were published in December 2012. A fourth article of February 4, 2013 is a Facebook profile which carries the name Leandros Liasides twice and Nyx Official 3 times and with 1363 “likes”. A fifth article is from a Twitter Account where the username is iamnyxmusic and the email address is liandros @iamnyx.com. It carries a promotion for the Nyx music Kyro and gives two email addresses, info @iamnyx.com and bookings@iamnyx .com and links to a website at
“wwwiamnyx.com (coming soon).” A sixth piece is another promotion for Kyro with the producer identified as Nyx and the statement “Very happy to see new talents like Leandros aka Nyx entering the trance scene with so promising for his future in the scene productions”. ( emphasis added). A seventh reference is a promotion for Kyro described as “the debut appearance for Leandros Liasides also known as Nyx.” Eight is a You Tube item on Kyro referring to” Leandros Liasides also known as Nyx, with Kyro.” (emphasis added). Eighth is a contract between Borderline Music and Leandros Liasides where the artist contracted to Borderline Music is Nyx. Ninth is a contract between Essential Audio and Leandros Liasides where the artist contracted to Essential Audio is “ Nyx-Kyro.” The evidence also includes material relating to emails and shows references to three email addresses , leandros @ iamnyx.com, info @iamnyx.comand bookings @iamnyx.com, emails though Workspace Webmail, relating to music , an email with the salutation “ Hey Nyx” and a record of several other emails , one of which is leandros !@ iamnyx.
In the opinion of the Panel, this evidence shows separately and collectively that:
(a) Respondent was using or making demonstrable preparations to use the domain name for a bona fide offering of goods and services, as he has clearly been using it to promote himself in his developing business as a music producer and entertainment personality and is recognized by the industry as using the domain name for that purpose , as is evidenced by the use of the domain name and its constituent part Nyx, the emails which have a commercial and potential commercial use and value and the extracts from the commercial contracts;
(b) Respondent is known by the domain name to a sufficiently wide commercial and fan base that he can be said to be commonly known by the domain name ; and
(c) Insofar as those uses were not commercial, then they show that he was making a legitimate noncommercial or fair use of the domain name for private and personal purposes, including entertainment such as his own private email service.
These uses in the opinion of the Panel bring the case squarely within the provisions of Policy ¶ 4(c) and show that Respondent has both a right and a legitimate interest in respect of the domain name.
On the totality of the evidence Complainant has thus been unable to establish a prima facie case and in so far as it has established a prima facie case, Respondent has rebutted it by showing positively that he has a right or legitimate interest in the domain name. The result in either case is that the Respondent is found to have a right or legitimate interest in the disputed domain name.
See, as illustrations of the principles discussed above, Terminal Supply, Inc. v. HI-LINE ELECTRIC, FA 746752 (Nat. Arb. Forum Aug. 24, 2006) (holding that the complainant did not satisfactorily meet its burden and as a result found that the respondent had rights and legitimate interests in the domain name under UDRP ¶ 4(a)(ii)); see also Workshop Way, Inc. v. Harnage, FA 739879 (Nat. Arb. Forum Aug. 9, 2006) (finding that the respondent overcame the complainant’s burden by showing it was making a bona fide offering of goods or services at the disputed domain name).
Complainant has thus failed to prove the second element that it must establish and as a complainant must establish all three elements to win, the claim will fail.
As the Panel concludes that Respondent has rights or legitimate interests in the <iamnyx.com> domain name pursuant to Policy ¶ 4(a)(ii), the Panel also finds that Respondent did not register or use the disputed domain name in bad faith pursuant to Policy ¶ 4(a)(iii). See Lockheed Martin Corp. v. Skunkworx Custom Cycle, D2004-0824 (WIPO Jan. 18, 2005) (finding that the issue of bad faith registration and use was moot once the panel found the respondent had rights or legitimate interests in the disputed domain name); see also Vanguard Group Inc. v. Investors Fast Track, FA 863257 (Nat. Arb. Forum Jan. 18, 2007) (“Because Respondent has rights and legitimate interests in the disputed domain name, his registration is not in bad faith.”).
The Panel further finds that Respondent has not registered or used the <iamnyx.com> domain name in bad faith as it finds that Respondent has not violated any of the factors listed in Policy ¶ 4(b) or engaged in any other conduct that would constitute bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See Societe des Produits Nestle S.A. v. Pro Fiducia Treuhand AG, D2001-0916 (WIPO Oct. 12, 2001) (finding that where the respondent has not attempted to sell the domain name for profit, has not engaged in a pattern of conduct depriving others of the ability to obtain domain names corresponding to their trademarks, is not a competitor of the complainant seeking to disrupt the complainant's business, and is not using the domain name to divert Internet users for commercial gain, lack of bona fide use on its own is insufficient to establish bad faith); see also Starwood Hotels & Resorts Worldwide, Inc. v. Samjo CellTech.Ltd, FA 406512 (Nat. Arb. Forum Mar. 9, 2005) (finding that the complainant failed to establish that respondent registered and used the disputed domain name in bad faith because mere assertions of bad faith are insufficient for a complainant to establish UDRP ¶ 4(a)(iii)).
In addition it must be said that on the unchallenged evidence, particularly as Complainant has not availed itself of the opportunity to produce new evidence proving its case, Respondent has not committed any act bringing him within the provisions of Policy ¶ 4(b) that show bad faith registration and use. He has not acquired the domain name to resell or otherwise deal with it, to prevent Complainant from reflecting its trademark in a domain name, has not attempted to disrupt Complainant’s business and has not tried to create any confusion. Specifically, the Panel rejects all of Complainant’s allegations in the Complaint with respect to the registration and use of the domain name as they are not supported by evidence and as some of the allegations are plainly not true, as has been demonstrated by Respondent’s evidence that the Panel accepts. In particular, there is a perfectly good reason why Respondent chose the name Nyx, which is that she was the Greek goddess of the night, a very appropriate stage name for an entertainer producing music and inevitably performing it at night and the suggestion that Respondent received money for pay-per-click hits on his website was rebutted by Respondent’s evidence, which the Panel accepts and which Complainant did not attempt to rebut.
That evidence came from the answers to questions put to Respondent by the Panel in the Procedural Order as follows:
3. (a) On the date when Mr. Liasides registered the domain name was he aware of the Complainant, the NYX trademark, or NYX products?
Response 3a
Completely unaware at the time and have not seen them in the UK, Advertising or products are not a part of my life or knowledge, as far as I was aware the use I have for the name NYX is just that a name and does not infringe on copyrights to the best of my current knowledge.
(b) When and how did he first become aware of the Complainant, the NYX trademark, or NYX products?
Response 3b
First became aware when informed by email (… from the Forum…) on the 1/2/2013. “
That evidence by itself goes a long way to negate any suggestion of registration and use of the domain name in bad faith.
Complainant has thus failed to prove the third element that it must establish.
Having not established all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.
Accordingly, it is Ordered that the <iamnyx.com> domain name REMAIN WITH Respondent.
The Honourable Neil Anthony Brown QC
Panelist
Dated: February 14, 2013
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