UGN, Inc. v. Boca Database Services, Inc
Claim Number: FA1406001565297
Complainant is UGN, Inc. (“Complainant”), represented by Laura Petrolino of Arment Dietrich, Inc., Illinois, USA. Respondent is Boca Database Services, Inc (“Respondent”), Florida, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <ugn.com>, registered with Network Solutions, LLC.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on June 18, 2014; the National Arbitration Forum received payment on June 24, 2014.
On June 27, 2014, Network Solutions, LLC confirmed by e-mail to the National Arbitration Forum that the <ugn.com> domain name is registered with Network Solutions, LLC and that Respondent is the current registrant of the name. 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 1, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 21, 2014 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 postmaster@ugn.com. Also on July 1, 2014, 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 National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On July 22, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Sandra J. Franklin 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" 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 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
1. Respondent’s <ugn.com> domain name is confusingly similar to Complainant’s UGN brand name.
2. Respondent does not have any rights or legitimate interests in the <ugn.com> domain name.
3. Respondent’s <ugn.com> domain name is not in use.
B. Respondent failed to submit a Response in this proceeding.
Complainant holds a registration for the mark UGN SOUND SOLUTIONS FOR THE AUTOMOTIVE INDUSTRY. Complainant does not hold a registration for UGN.
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 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(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.”).
Complainant has not submitted any arguments or proof that is has rights in UGN as a mark, but merely states that UGN, Inc. is its brand name. The Panel finds that Complainant has not met its burden of proof under Policy ¶ 4(a)(i) and, therefore denies the Complaint. See Diversified Mortgage, Inc. v. World Fin. Partners, FA 118308 (Nat. Arb. Forum Oct. 30, 2002) (finding that the UDRP makes clear that its “rules are intended only to protect trademarks, registered or common law, and not mere trade names, due to the fact that trade names are not universally protected as are trademarks”); see also Thomas Alarm Sys., Inc. v. cHEXx Partners, FA 1303478 (Nat. Arb. Forum Mar. 12, 2010) (finding the complainant had failed to prove secondary meaning when its “sole allusion to common law ownership of that trademark is its provision to the panel of articles of incorporation indicating that Complainant has been in business since 1984”).
Considering that all three elements of the Policy must be met and that the Complainant has failed to satisfy the very first element, the Panel declines to analyze the other two elements of the Policy. 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 Hugo Daniel Barbaca Bejinha v. Whois Guard Protected, FA 836538 (Nat. Arb. Forum Dec. 28, 2006) (deciding not to inquire into the respondent’s rights or legitimate interests or its registration and use in bad faith where the complainant could not satisfy the requirements of Policy ¶ 4(a)(i)).
The Complainant 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 <ugn.com> domain name REMAIN WITH Respondent.
Sandra J. Franklin, Panelist
Dated: July 29, 2014
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