Jason Claiborne v. StreamlineNet
Claim
Number: FA0508000535350
Complainant is Jason Claiborne (“Complainant”), 13901
Midway Road, Dallas, TX 75244.
Respondent is StreamlineNet (“Respondent”),
Castle Square, Melbourne, Derbyshire, DE73 8DY.
REGISTRAR
AND DISPUTED DOMAIN NAME
The
domain name at issue is <jase.net>, registered with Tucows Inc.
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.
Honorable
Karl V. Fink (Ret.) as Panelist.
Complainant
submitted a Complaint to the National Arbitration Forum electronically on August
8, 2005; the National Arbitration Forum received a hard copy of the Complaint
on August 17, 2005.
On
August 8, 2005, Tucows Inc. confirmed by e-mail to the National Arbitration
Forum that the <jase.net> domain name is registered with Tucows
Inc. and that Respondent is the current registrant of the name. Tucows Inc. has verified that Respondent is
bound by the Tucows Inc. 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
August 22, 2005, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
September 12, 2005 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@jase.net by e-mail.
Having
received no response from Respondent, the National Arbitration Forum
transmitted to the parties a Notification of Respondent Default.
On
September 19, 2005, pursuant to Complainant's request to have the dispute
decided by a single-member Panel, the National Arbitration Forum appointed
Honorable Karl V. Fink (Ret.) as Panelist.
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." 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 makes the following assertions:
1. Respondent’s <jase.net>
domain name is identical to Complainant’s JASE mark.
2. Respondent does not have any rights or
legitimate interests in the <jase.net> domain name.
3. Respondent registered and used the <jase.net>
domain name in bad faith.
B. Respondent failed to submit a Response in
this proceeding.
Complainant,
Jason Claiborne, holds a trademark registration with the United States Patent
and Trademark Office (“USPTO”) for the JASE mark (Reg. No. 2,737,936 issued
July 15, 2003, filed March 19, 2001).
Complainant asserts that it has continuously used the JASE mark in
connection with Complainant’s bottled water business since 1989.
Respondent,
StreamlineNet, Ltd., registered the <jase.net> domain name on July
10, 2001. The record does not state
Respondent’s intended or current use of the disputed 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."
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.”).
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.
Complainant has
established rights in the JASE mark through registration of the mark with the
USPTO. See Am.
Online, Inc. v. Thomas P. Culver Enters., D2001-0564 (WIPO June 18, 2001)
(finding that successful trademark registration with the USPTO creates a
presumption of rights in a mark); see also Innomed
Tech., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004)
(“Registration of the NASAL-AIRE mark with the USPTO
establishes Complainant's rights in the mark.”); see also Planetary Soc’y v. Rosillo, D2001-1228 (WIPO Feb. 12, 2002)
(holding that the effective date of Complainant’s trademark rights date back to
the application’s filing date).
Respondent’s <jase.net>
domain name is identical to Complainant’s JASE mark because the domain name
features Complainant’s mark in its entirety and merely adds the generic
top-level domain “.net” to the mark.
The Panel finds that such a minor addition to Complainant’s mark is
insufficient to negate the identical aspects of Respondent’s domain name
pursuant to Policy ¶ 4(a)(i). See
Isleworth Land Co. v. Lost in Space, SA, FA 117330 (Nat. Arb. Forum Sept.
27, 2002) (finding it is a “well established principle that generic top-level
domains are irrelevant when conducting a Policy ¶ 4(a)(i) analysis”); see
also Nev. State Bank v. Modern Ltd. – Cayman Web Dev., FA 204063 (Nat. Arb.
Forum Dec. 6, 2003) (“It has been established that the addition of a generic
top-level domain is irrelevant when considering whether a domain name is identical
or confusingly similar under the Policy.”).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has
alleged that Respondent does not have rights or legitimate interests in the <jase.net>
domain name. Once Complainant makes a prima
facie case in support of its allegations, the burden shifts to Respondent
to prove that it does have rights or legitimate interests pursuant to Policy ¶
4(a)(ii). Due to Respondent’s failure
to respond to the Complaint, the Panel assumes that Respondent does not have
rights or legitimate interests in the disputed domain name. See
G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002)
(holding that, where the complainant has asserted that respondent does not have
rights or legitimate interests with respect to the domain name, it is incumbent
on respondent to come forward with concrete evidence rebutting this assertion
because this information is “uniquely within the knowledge and control of the
respondent”); see also Clerical Med. Inv.
Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding
that, under certain circumstances, the mere assertion by the complainant that
the respondent does not have rights or legitimate interests is sufficient to
shift the burden of proof to the respondent to demonstrate that such a right or
legitimate interest does exist).
The Panel finds
that Policy ¶ 4(a)(ii) has been satisfied.
There is no evidence that the original registrant of the domain name was
aware of Complainant’s mark when the domain name was registered. The trademark JASE was not registered with
the USPTO until two years after the domain name was registered.
The Panel finds that Complainant failed to establish bad faith
registration and use of the <jase.net>
domain name pursuant to Policy ¶ 4(a)(iii). See 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 Policy ¶ 4(a)(iii)); see also It
Takes 2 v. C.,J., FA 384923 (Nat. Arb. Forum Feb. 15, 2005) ("[I]n the
absence of any evidence of knowledge on the part of Respondent of Complainant,
its mark or its services at the time Respondent acquired the domain name, the
Panel finds Complainant has failed to establish registration in bad
faith."); see also U.S. Nutraceuticals, LLC v. Telepathy, Inc., FA
365884 (Nat. Arb. Forum Jan. 17, 2005) (“Without knowledge of Complainant or
its claim of right in the mark, it is difficult to see how Respondent could
have the specific intent required for it to act in bad faith against the rights
of Complainant.”); see also Graman USA Inc. v. Shenzhen Graman Indus. Co.
FA 133676 (Nat. Arb. 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); see also Loris Azzaro BV, SARL v. Asteri,
D2000-0608 (WIPO Sept. 4, 2000) (“Mere belief and indignation by Complainant
that Respondents have registered and are using the Domain Name in bad faith are
insufficient to warrant the making of such a finding in the absence of
conclusive evidence.”).
The Panel finds
that Policy ¶ 4(a)(iii) has not been satisfied.
Complainant
having failed to establish all three elements required under the ICANN Policy,
the Panel Orders that relief shall be DENIED.
Honorable Karl V. Fink (Ret.), Panelist
Dated:
September 30, 2005
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