Ben Bridgeman v. Marketing Total S.A.
Claim Number: FA0704000964309
Complainant is Ben Bridgeman (“Complainant”), represented by Mike
Fiksen of 1Communication Ltd, 4 Clearway Court,
139-141 Croydon Road, Caterham, Surrey CR3 6PF, UK. Respondent is Marketing Total S.A. (“Respondent”),
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <bailbrookhouse.com>, registered with Domaindoorman, LLC.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge she has no known conflict in serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically April 18, 2007; the National Arbitration Forum received a hard copy of the Complaint April 23, 2007.
On April 18, 2007, Domaindoorman, LLC confirmed by e-mail to the National Arbitration Forum that the <bailbrookhouse.com> domain name is registered with Domaindoorman, LLC and that Respondent is the current registrant of the name. Domaindoorman, LLC, verified that Respondent is bound by the Domaindoorman, LLC registration agreement and thereby has agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On April 27, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of May 17, 2007, 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@bailbrookhouse.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On May 23, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. Carolyn Marks Johnson as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum 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. The domain name that Respondent registered, <bailbrookhouse.com>, is identical to Complainant’s BAILBROOK HOUSE mark.
2. Respondent has no rights to or legitimate interests in the <bailbrookhouse.com> domain name.
3. Respondent registered and used the <bailbrookhouse.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Ben Bridgeman, appears from a photocopy of a business card contained in the annex and attached to the Complaint to be the Bailbrook House General Manager. Complainant contends, through the limited facts provided by Complainant, that the Bailbrook House is a longstanding hotel/conference centre trading in the name of Bailbrook House.
Respondent registered the <bailbrookhouse.com> domain name November 8, 2006.
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."
Given 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 will draw such inferences as the Panel 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 Complainant to 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.
Therefore, to prevail in this action, Complainant must satisfy a three-pronged burden. Complainant must show that the disputed domain name is identical to or confusingly similar to a mark in which Complainant has rights under Policy ¶ 4(a)(i). Complainant must then show that Respondent has no rights to or legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii). Finally, Complainant must show that Respondent registered and used the disputed domain name in bad faith under Policy ¶ 4(a)(iii).
In the Complaint, Complainant makes no allegation and provides no evidence with regard to the nature of use of the domain name in dispute and also has failed to demonstrate Respondent’s bad faith registration and use under Policy ¶ 4(a)(iii). Therefore, the Panel finds that Complainant has failed to meet its burden of proving Respondent is using the <bailbrookhouse.com> domain name in bad faith under Policy ¶ 4(a)(iii). See PRL USA Holdings, Inc. v. Polo, D2002-0148 (WIPO Apr. 29, 2002) (finding that because the complainant failed to provide any factual allegations as to the nature of use of the disputed domain name, the complainant failed to prove that the respondent’s domain names were being used in bad faith); 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).
The Panel finds that Policy ¶ 4(a)(iii)
has not been satisfied.
Complainant’s failure to establish Respondent’s bad faith use of the <bailbrookhouse.com> domain name under Policy ¶ 4(a)(iii) renders discussion of the other two elements of the Policy moot, since all three are required.
Therefore, the Panel finds that Complainant has not met its
burden. See Creative Curb v. Edgetec
Int’l Pty. Ltd., FA 116765 (Nat. Arb. Forum Sept. 20, 2002) (finding that
because the complainant must prove all three elements under the Policy, the
complainant’s failure to prove one of the elements makes further inquiry into
the remaining element unnecessary); see also VeriSign Inc. v. VeneSign C.A., D2000-0303 (WIPO June 28, 2000)
(“Respondent's default, however, does not lead to an automatic ruling for
Complainant. Complainant still must establish a prima facie case showing that
under the Uniform Domain Name Dispute Resolution Policy it is entitled to a
transfer of the domain name.”).
Having failed to establish all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.
Accordingly, it is Ordered that the <bailbrookhouse.com> domain name should be retained by Respondent.
Hon. Carolyn Marks Johnson, Panelist
Dated: June 6, 2007.
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