Aeropostale Procurement Company, Inc. v. Michael Kinsey
Claim Number: FA1403001550933
Complainant: Aeropostale Procurement Company, Inc. of New York, New York, United States of America.
Complainant Representative: Katten Muchin Rosenman LLP of New York, New York, United States of America.
Respondent: Michael Kinsey of Cypress, Texas, United States of America.
REGISTRIES and REGISTRARS
Registry: UNO Registry
Registrar: 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 Examiner in this proceeding.
Alan L. Limbury, as Examiner.
Complainant submitted: March 26, 2014
Commencement: March 27, 2014
Response Date: April 9, 2014
Having reviewed the communications records, the Examiner finds that the National Arbitration Forum has discharged its responsibility under URS Procedure Paragraphs 3 and 4 and Rule 4 of the Rules for the Uniform Rapid Suspension System (the "Rules") .
Complainant requests that the domain name be suspended for the life of the registration.
Clear and convincing evidence.
URS Procedure 1.2.6 requires Complainant to prove, by clear and convincing evidence, each of the following three elements to obtain an order that a domain name should be suspended:
(a) that the registered domain name is identical or confusingly similar to a word mark: (i) for which the Complainant holds a valid national or regional registration and that is in current use; or (ii) that has been validated through court proceedings; or (iii) that is specifically protected by a statute or treaty in effect at the time the URS complaint is filed;
(b) that the Registrant has no legitimate right or interest to the domain
(c) that the domain was registered and is being used in bad faith.
Current use of a mark on which a complainant relies can be shown by demonstrating that evidence of use – which can be a declaration and one specimen of current use in commerce – was submitted to, and validated by, the Trademark Clearinghouse. Proof of use may also be submitted directly with the URS Complaint: URS 188.8.131.52(a) and (b).
Complainant here submitted with its complaint copies of the certificates of registration of seven United States AEROPOSTALE trademarks, four of which are in the name R. H. Macy & Co., Inc., two of which are in the name Aeropostale West, Inc., and one of which is in the name Aeropostale, Inc. Complainant submitted no evidence of any relationship between any of those companies and the Complainant, Aeropostale Procurement Company, Inc.
Accordingly there is no evidence before the Examiner that the Complainant holds a valid national or regional registration for a mark to which the domain name is identical or confusingly similar.
After reviewing the parties’ submissions, the Examiner determines that
the Complainant has NOT demonstrated all three elements of the URS by a standard of clear and convincing evidence; the Examiner dismisses the complaint without prejudice to the Complainant proceeding with an action in court of competent jurisdiction or under the UDRP and hereby Orders the following domain name be RETURNED to the control of Respondent: <aeropostale.uno>.
Alan L. Limbury, Examiner
Dated: April 10, 2014
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