Mark Dunnett v. PRIVATE REGISTRANT / A HAPPY DREAMHOST CUSTOMER
Claim Number: FA1409001578160
Complainant is Mark Dunnett (“Complainant”), Illinois, USA. Respondent is PRIVATE REGISTRANT / A HAPPY DREAMHOST CUSTOMER (“Respond-ent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <markdunnett.com>, registered with DREAMHOST.
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 National Arbitration Forum electron-ically on September 3, 2014; the National Arbitration Forum received payment on September 3, 2014.
On September 16, 2014, DREAMHOST confirmed by e-mail to the National Arbitration Forum that the <markdunnett.com> domain name is registered with DREAMHOST and that Respondent is the current registrant of the name. DREAMHOST has verified that Respondent is bound by the DREAMHOST reg-istration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Res-olution Policy (the “Policy”).
On September 17, 2014, the Forum served the Complaint and all Annexes, in-cluding a Written Notice of the Complaint, setting a deadline of October 7, 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, adminis-trative, and billing contacts, and to postmaster@markdunnett.com. Also on Sep-tember 17, 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 October 8, 2014, pursuant to Complainant's request to have the dispute de-cided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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 Not-ices, 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
Complainant’s name has been associated with various real estate contracting projects around the United States.
Complainant has received favorable referrals from many of its customers.
Complainant has been brought on as a president for various real estate con-tracting projects.
Secondary meaning has been created in Complainant’s use of its name for over thirty years in commercial real estate contracting.
Respondent registered the <markdunnett.com> domain name October 21, 2011.
The <markdunnett.com> domain name is substantively identical to Complainant’s MARK DUNNETT name and mark.
Respondent has not been commonly known as either MARK DUNNETT or the <markdunnett.com> domain name.
The domain name resolves to a gripe site that unfairly lambasts Complainant.
Respondent has no rights to or legitimate interests in the domain name.
Respondent’s use of the domain name to host a gripe site is deceptive.
Respondent has registered and now uses the domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has failed to show that the contested domain name has been registered and is being used by Respondent in bad faith.
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 can-celled or transferred:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. 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 representa-tions 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 Verti-cal Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (finding that a respondent’s failure to respond allows all reason-able inferences of fact in the allegations of a UDRP 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.”
It is customary in cases of this kind for a panel to analyze all three elements of Policy ¶ 4(a), i.e.: subsections (i), (ii) and (iii), in reaching a conclusion as to the validity of a complaint such as that presently before us. However, in order to merit a favorable decision on its claim as a whole, a UDRP complainant must demonstrate that it is entitled to prevail on each of the three branches of Policy ¶ 4(a). Therefore, where it becomes apparent that a complainant has failed to prove its entitlement to prevail as to any one of the three subparts of that section of the Policy, it is unnecessary for us to conduct an analysis of the others. See, for example, Creative Curb v. Edgetec Int’l Pty. Ltd., FA 116765 (Nat. Arb. Forum Sept. 20, 2002) (finding that because a UDRP complainant must prove all three elements of Policy ¶ 4(a), its failure to prove one of them makes inquiry into the remaining two elements unnecessary).
In this instance, we have examined the record on the point of Complainant’s assertion that Respondent has registered and is using the <markdunnett.com> domain name in bad faith. In doing so, we find that there is no evidence that Respondent has attempted to sell the domain name for profit, or that it has engaged in a pattern of conduct depriving others of the ability to obtain domain names corresponding to their trademarks, or that it is a competitor of Complain-ant seeking to disrupt its business, or that it is using the domain name to divert Internet users for its commercial gain. In such circumstances, we are forced to conclude that Complainant has failed to show that Respondent has registered and is using the domain name in bad faith as provided in Policy ¶ 4(a)(iii). See Societe des Produits Nestle S.A. v. Pro Fiducia Treuhand AG, D2001-0916 (WIPO Oct. 12, 2001) (finding that where a respondent has not attempted to sell a contested domain name for profit, has not engaged in a pattern of conduct depriving others of the ability to obtain domain names corresponding to their trademarks, is not a competitor of a UDRP complainant seeking to disrupt that complainant's business, and is not using the domain name to divert Internet users for its commercial gain, the requisite showing of bad faith under Policy ¶ 4(a)(iii) has not been made).
Complainant having failed to establish one of the essential 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 <markdunnett.com> domain name shall remain with Respondent.
Terry F. Peppard, Panelist
Dated: October 11, 2014
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