AWGI, LLC v. Cordelli Brian Scarlet / null
Claim Number: FA1808001801553
Complainant is AWGI, LLC (“Complainant”), represented by Mark F. Warzecha of Widerman Malek, PL, Florida, US. Respondent is Cordelli Brian Scarlet / null (“Respondent”), Canada.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <atlasglobalvanlines.com>, registered with Tucows Domains Inc.
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 15, 2018; the Forum received payment on August 15, 2018.
On August 16, 2018, Tucows Domains Inc.; confirmed by e-mail to the Forum that the <atlasglobalvanlines.com> domain name is registered with Tucows Domains Inc.; and that Respondent is the current registrant of the name. Tucows Domains Inc. has verified that Respondent is bound by the Tucows Domains 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 August 21, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 10, 2018 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 email@example.com. Also on August 21, 2018, 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 September 12, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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 a response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
Complainant is in the business of providing transportation and storage of household goods and freight forwarding services.
Complainant holds a registration for the ATLAS service mark, which is on file with the United States Patent and Trademark Office (“USPTO”) as Registry No. 3,718,117, registered December 1, 2009.
Respondent registered the domain name <atlasglobalvanlines.com> on March 28, 2018.
The domain name is confusingly similar to Complainant’s ATLAS mark.
Respondent does not use the domain for a legitimate noncommercial or fair use.
Instead, Respondent attempts to confuse Internet users as to the affiliation of the domain name with Complainant.
Respondent, for commercial gain, attempts to attract Internet users to the disputed domain name’s resolving website where Respondent attempts to confuse them as to the source of the information on that website.
Respondent lacks rights to and legitimate interests in the domain name.
Respondent registered and uses the domain name in bad faith.
Respondent failed to submit a Response in this proceeding.
Complainant has failed to demonstrate prima facie that Respondent has no rights to or legitimate interests in the challenged domain name.
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 to or legitimate interests in respect of the domain name; and
(3) the same domain name has been registered and is being used by Respondent in bad faith.
In view of Respondent's failure to submit a response, the Panel will, pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules, decide this proceeding on the basis of Complainant's undisputed representations, and, pursuant to paragraph 14(b) of the Rules, draw such inferences as it deems appropriate. The Panel is entitled to accept as true all reasonable allegations and inferences set out in the Complaint unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (finding that a respondent’s failure to respond allows all reasonable inferences of fact in the allegations of a UDRP complaint to be deemed true). See also Talk City, Inc. v. Robertson, D2000-0009 (WIPO February 29, 2000): “In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”
In the ordinary course, we would address the elements of Policy ¶ 4(a) in the order in which they are presented above. In this instance, however, we find it best to consider first, and exclusively, the question of Respondent’s rights to or legitimate interests in the contested domain name, because, in the particular circumstances of this proceeding, that issue resolves the entire controversy.
The reason for this is that the Policy requires Complainant to prevail on each and every one of the three subsections of Policy ¶ 4(a) in order to prevail in the proceeding as a whole. If, therefore, Complainant fails as to any one of them, its case fails altogether. And, in that event, consideration of the Complaint may begin and end with examination of the element as to which Complainant has failed to provide proof upon which it can prevail. See, for example, Post.Com Limited v. Peter Neilson, D2002-0690 (WIPO September 17, 2002):
In this Panel’s view, the Complainant has not established … that the Domain Name was registered by the Respondent in bad faith.... In the light of this finding the Panel does not need to consider paragraphs 4(a)(i) and (ii) of the Policy.
To the same effect, see also Burn World-Wide, Ltd. d/b/a BGT Partners v. Banta Global Turnkey Ltd., D2010-0470 (WIPO May 19, 2010).
With this principle in mind, we examine the question of Respondent’s rights to or legitimate interests in the contested <atlasglobalvanlines.com> domain name as it is presented in Policy 4(a)(ii). Under that provision of the Policy, Complainant must make a prima facie showing that Respondent lacks rights to and legitimate interests in the disputed domain name. If that effort is successful, the burden then shifts to Respondent to show that it does have such rights or interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum August 18, 2006) (finding that a UDRP complainant must present a prima facie case that a respondent lacks rights to or legitimate interests in a disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to that respondent to show that it does have such rights or interests). See also AOL LLC v. Gerberg, FA 780200 (Forum September 25, 2006):
Complainant must … 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, … the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.
The Complaint filed in this proceeding is exceedingly spare. In particular, it makes no attempt to show, by at least proof prima facie, that Respondent has failed to use, or to make demonstrable preparations to use, the contested domain name, “in connection with a bona fide offering of goods or services” as provided in Policy ¶ 4(c)(i).
We note in this connection that there is attached to the Complaint a screen print of the web page that is claimed to resolve from the disputed domain name. That web page displays a street address in Flushing, New York, a phone number, an e-mail address, a US Department of Transportation (USDOT) number and a Motor Carrier (MC) number. The Complaint does not suggest that any investigation has been made to determine the bona fides of these items of information. And, although the same web page also contains tabs labeled “Get Free Quote,” “About Us,” “Services,” “Contact,” “References” and “Letters,” the Complaint makes no showing that these tabs have been explored to determine if they reflect whether a bona fide business is under operation at the challenged domain name.
These omissions leave open the possibility that Respondent has “rights or legitimate interests in respect of the domain name” within the meaning of Policy ¶ 4(a)(ii). Because Complainant has left this question unattended, we cannot, on the record before us, conclude that Complainant has met its three-pronged obligations of proof under Policy ¶ 4(a).
Complainant having failed to establish all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be, and it is hereby, DENIED.
Accordingly, it is Ordered that the <atlasglobalvanlines.com> domain name REMAIN WITH Respondent.
Terry F. Peppard, Panelist
Dated: September 18, 2018
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