DECISION

 

Commerce Holdings, Inc. v. Glen A. Sheets and Tony Sheets

Claim Number: FA0303000150812

 

PARTIES

Complainant is Commerce Holdings, Inc., Dallas, TX (“Complainant”) represented by Scott L. Harper, of Carstens Yee & Cahoon LLP.  Respondent is Glen A. Sheets and Tony Sheets, Prairie Village, KS (“Respondent”).

 

REGISTRAR AND DISPUTED DOMAIN NAME 

The domain name at issue is <angrydog.net>, registered with Register.Com.

 

PANEL

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.

 

Judge Irving H. Perluss (Retired) is the Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on March 20, 2003; the Forum received a hard copy of the Complaint on March 21, 2003.

 

On March 21, 2003, Register.Com confirmed by e-mail to the Forum that the domain name <angrydog.net> is registered with Register.Com and that the Respondent is the current registrant of the name.  Register.Com has verified that Respondent is bound by the Register.Com registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).

 

On March 26, 2003, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of April 15, 2003 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts, and to postmaster@angrydog.net by e-mail.

 

A timely Response was received and determined to be complete on April 14, 2003.

 

On April 21, 2003, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed Judge Irving H. Perluss (Retired) as Panelist.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES’ CONTENTIONS

A. Complainant

1.                  Commerce Holdings, Inc., is the owner of United States Federal Trademark No. 1,705,123 (first used in commerce on August 31, 1990) and United States Trademark Application Serial Nos. 76/357,952 and 76/358,111 (first used in commerce on August 10, 1990) for the mark ANGRY DOG.  Complainant also is the registered owner of the Internet domains <angrydog.com>, <angrydog.biz>, <angrydog.info>, and <angrydog.org>.

 

2.                  Respondent is the owner of the disputed domain name <angrydog.net> registered on September 28, 2000.  The Respondent’s domain registration contains the term ANGRY DOG, which is identical to the Complainant’s trademark and Internet domains.

 

3.                  Respondent’s ownership and possession of the domain <angrydog.net> infringes upon the trademark rights of the Complainant pursuant to Section 43 of the Lanham Act, 35 U.S.C. Section 1125, due to the likelihood of consumers confusing the trademarks and domain registrations of Complainant with the domain registration of the Respondent.  Additionally, Complainant is concerned that given the identical nature of the marks and domain registrations at issue, Respondent’s continued use and possession of the domain <angrydog.net> will lead to the dilution of Complainant’s ANGRY DOG trademarks and the loss of profits associated therewith.

 

4.                  Complainant alleges that Respondent should be considered as having no legitimate rights or interests in the domain name <angrydog.net> on the following grounds:

 

a.            On information and belief, Respondent has not and is not presently using the domain name <angrydog.net> in connection with a bona fide offering of goods or services.

 

b.            On information and belief, Respondent is not commonly known by the domain name <angrydog.net> and has not acquired trademark or service rights in same.

 

c.            On information and belief, Respondent is not making legitimate noncommercial or fair use of the <angrydog.net> domain name with no intention of commercial gain and is misleading and diverting potential consumers and tarnishing the trademark and service marks owned and used by the Complainant.

 

5.                  On information and belief, the Respondent has acquired and registered the domain name <angrydog.net> for the purpose of selling, renting, or otherwise transferring the domain name registration to the Complainant, who is the owner of the ANGRY DOG trademark and service marks or to a competitor of Complainant, for valuable consideration in excess of Respondent’s documented out-of-pocket expenses directly to the <angrydog.net> domain name.

 

B. Respondent

1.                  Respondent does not dispute that the disputed domain name is identical to Complainant’s marks.  He contends, however, that the trademarks specifically apply to “clothing; namely T-shirts and hats,” “restaurant services,” and one rudimentarily drawn logo bearing the words ANGRY DOG.  Respondent has not used the domain name <angrydog.net> in a manner that would conflict with any of these trademarks.  Since taking ownership of this domain on September 28, 2000, the domain has been used for personal purposes.

 

2.                  The domain is not currently in use, and, as such, cannot possibly cause dilution or confusion with any of the Complainant’s trademarks.

 

3.                  The domain name <angrydog.net> is commonly known to Respondent’s friends and associates as a place to find materials on that site.  Additionally, he has used the ANGRY DOG name professionally for IT consulting services.

 

4.                  Respondent has made multiple noncommercial uses of the <angrydog.net> domain.  Furthermore, no attempt has ever been made to mislead or divert potential Dallas area customers of Complainant.

 

5.                  The words “Angry” and “Dog” are generic and common and, as such, their simplicity is what makes this a valuable domain for Respondent’s purposes.

 

6.                  The disputed domain name was not registered in bad faith.  It was registered because the two words fit well together, were short, easy to remember, and evoked a strong and easily identifiable mental image.

 

7.                  Respondent has never contacted Commerce Holdings, Inc., or any of its representatives to ask for any compensation for transferring the disputed domain name.

 

FINDINGS AND DISCUSSION

Paragraph 15(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (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 the 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 the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;

(2)    the 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.

 

There can be no doubt but that the disputed domain name is identical to Complainant’s marks and the first prong of the triad of required proof may be deemed established.

 

Nevertheless, the Complaint still is subject to summary disposition.  Complainant has not carried its required burden of proof with respect to the remaining two elements by establishing that Respondent has no rights or legitimate interests in the disputed domain name, and that the disputed domain name has been registered and is being used by Respondent in bad faith.

 

This is because Complainant has couched its charges with respect to each of these two elements “on information and belief.”  Subject to exceptions not here pertinent, it is the Panel’s view that an affidavit  based on information and belief is entitled to little, if any, weight for any purpose.[1]

 

No other evidence, direct or indirect, has been offered to bolster Complainant’s claim. The charges made by Complainant, accordingly are merely conclusions without support.

 

DECISION

Having failed to establish all three elements required under ICANN Policy, the Panel concludes that the relief sought by Complainant shall be DENIED.

 

 

 

 

JUDGE IRVING H. PERLUSS (RETIRED), Panelist

Dated: April 30, 2003

 

 

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