Tech Traders LLC / David Page v. Insuladd Environmental Products
Claim Number: FA1707001738720
Complainant is Tech Traders LLC / David Page (“Complainant”), represented by David Page of Tech Traders LLC, Florida, USA. Respondent is Insuladd Environmental Products (“Respondent”), Texas, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain names at issue are <insuladd.com> and <insuladdglobal.com>, registered with Network Solutions, 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.
Ho Hyun Nahm, Esq. as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 6, 2017; the Forum received payment on July 6, 2017.
On July 07, 2017, Network Solutions, Llc confirmed by e-mail to the Forum that the <insuladd.com> and <insuladdglobal.com> domain names are registered with Network Solutions, Llc and that Respondent is the current registrant of the names. Network Solutions, Llc has verified that Respondent is bound by the Network Solutions, 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 July 7, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 27, 2017 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 firstname.lastname@example.org, email@example.com. Also on July 7, 2017, 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 Forum transmitted to the parties a Notification of Respondent Default.
On July 31, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Ho Hyun Nahm, Esq. as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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 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 names be transferred from Respondent to Complainant.
Complainant registered the INSULADD mark with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 2,370,072, registered July 25, 2000).
The Panel notes that Complainant does not make any legal arguments within the Complaint itself. Complainant asserts that Respondent illegally hacked into its network and stole the disputed domain names from Complainant. Complainant is ready and willing to file a claim in federal court if unsuccessful in this UDRP proceeding.
Respondent failed to submit a response in this proceeding. The Panel notes that Respondent registered the <insuladd.com> and <insuladdglobal.com> domain names on February 22, 1998 and March 2, 2012, respectively.
i) Complainant’s arguments on various legal points pursuant to United States Federal Law, where Complainant alleges claims for Breach of Contract, Breach of Promissory Note, Trademark Infringement, and Harmful Access by Computer are not applicable to this arbitration proceeding within the scope of the UDRP and its elements.
ii) Complainant established that it had rights in the mark contained in the disputed domain names. Each of the disputed domain names is confusingly similar to Complainant’s protected mark.
iii) Complainant failed to prove that Respondent has no rights to or legitimate interests in the disputed domain names. Complainant has not established a prima facie case that Respondent lacks rights and legitimate interests under Policy ¶ 4(a)(ii).
iv) Complainant failed to meet the burden of proof of bad faith registration and use under Policy ¶ 4(a)(iii).
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."
Preliminary Issue: Non-UDRP Legal Arguments
Complainant includes an attachment of a drafted Federal Court complaint in which it argues various legal points pursuant to United States Federal Law, where Complainant alleges claims for Breach of Contract, Breach of Promissory Note, Trademark Infringement, and Harmful Access by Computer. However, the instant dispute is governed by the UDRP and not United States Federal Law, so the Panel decides to disregard these arguments. Again, while Policy ¶ 4(k) allows the parties to litigate these points in court, the Panel finds that these arguments are not applicable to this arbitration proceeding within the scope of the UDRP and its elements. See Abbott Labs. v. Patel, FA 740337 (Forum Aug. 15, 2006) (holding that assertions of trademark infringement are “entirely misplaced and totally inappropriate for resolution” in a domain name dispute proceeding because the UDRP Policy applies only to abusive cybersquatting and nothing else).
Accordingly, the following analysis is strictly confined to an analysis under the UDRP and does not address any arguments made by either party with respect to United States Federal Law.
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(f), 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 (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 claims it registered the INSULADD mark with the USPTO (e.g. Reg. No. 2,370,072, registered July 25, 2000). Registration of a mark with the USPTO sufficiently confers a complainant’s rights in a mark for the purposes of Policy ¶ 4(a)(i). See Humor Rainbow, Inc. v. James Lee, FA 1626154 (Forum Aug. 11, 2015) (stating, “There exists an overwhelming consensus amongst UDRP panels that USPTO registrations are sufficient in demonstrating a complainant’s rights under Policy ¶ 4(a)(i) and its vested interests in a mark. . . . Due to Complainant’s attached USPTO registration on the principal register at Exhibit 1, the Panel agrees that it has sufficiently demonstrated its rights per Policy ¶ 4(a)(i).”). Accordingly, the Panel finds that Complainant has established rights in the INSULADD mark.
Complainant does not make any legal contentions that fall under the second prong of Policy ¶ 4(a)(i), identical or confusingly similar to Complainant’s mark. The Panel notes that the disputed domain names include the entirety of the Complainant’s INSULADD mark and the disputed domain name <insuladdglobal.com> is combined with the geographical term “global.” Respondent also adds the gTLD “.com.” The addition of a gTLD and/or a descriptive term is insufficient to distinguish a domain name from a mark per Policy ¶ 4(a)(i). See Health Republic Insurance Company v. Gustavo Winchester, FA 1622089 (Forum July 7, 2015) (finding, “Domain name syntax requires TLDs. Domain name syntax prohibits spaces. Therefore, omitted spacing and adding a TLD must be ignored when performing a Policy ¶4(a)(i) analysis.”). Therefore, the Panel finds that each of the disputed domain names is confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain names 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 (Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006)
(“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain
Complainant does not make any legal contentions with respect to Policy ¶ 4(a)(ii).
The Panel holds that Complainant has not established a prima facie case that Respondent lacks rights and legitimate interests under Policy ¶ 4(a)(ii). See Terminal Supply, Inc. v. HI-LINE ELECTRIC, FA 746752 (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 (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 does not make any legal contentions with respect to Policy ¶ 4(a)(iii).
The Panel finds that Complainant failed to meet the burden of proof of bad faith registration and use under Policy ¶ 4(a)(iii). See Starwood Hotels & Resorts Worldwide, Inc. v. Samjo CellTech.Ltd, FA 406512 (Forum Mar. 9, 2005) (finding that the complainant failed to establish that the respondent registered and used the disputed domain name in bad faith because mere assertions of bad faith are insufficient for a complainant to establish Policy ¶ 4(a)(iii); see also Graman USA Inc. v. Shenzhen Graman Indus. Co., FA 133676 (Forum Jan. 16, 2003) (finding that general allegations of bad faith without supporting facts or specific examples do not supply a sufficient basis upon which the panel may conclude that the respondent acted in bad faith).
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 <insuladd.com> and <insuladdglobal.com> domain names REMAIN WITH Respondent.
Ho Hyun Nahm, Esq., Panelist
Dated: August 3, 2017
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