MCorelab Inc. v. Melissa Domain Name Services / Shanshan Huang
Claim Number: FA1512001652968
Complainant is MCorelab Inc. ("Complainant"), Nevada, USA. Respondent is Melissa Domain Name Services / Shanshan Huang ("Respondent"), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <mcorecloud.com>, registered with GoDaddy.com, LLC.
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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 17, 2015; the Forum received payment on December 17, 2015.
On December 18, 2015, GoDaddy.com, LLC confirmed by email to the Forum that the <mcorecloud.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, 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 December 21, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 11, 2016 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@mcorecloud.com. Also on December 21, 2015, the Written Notice of the Complaint, notifying Respondent of the email 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 January 18, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin as Panelist.
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 any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant contends that the disputed domain name <mcorecloud.com> is identical or confusingly similar to MCORECLOUD, a mark in which Complainant claims rights; that Respondent has no rights or legitimate interests in the domain name; and that Respondent registered and is using the domain name in bad faith.
In support thereof, Complainant states that it is the owner of common law trademark rights to the MCORECLOUD mark, and that it intends to use the mark in commerce. On May 12, 2015, Complainant applied to the U.S. Patent and Trademark Office to register its MCORECLOUD mark under 15 U.S.C. § 1051(b), based upon an intent to use the mark in the future. The office issued a Notice of Allowance on November 24, 2015, indicating that no opposition to the application had been filed, and establishing an initial deadline of six months thereafter for Complainant to file a Statement of Use in order to proceed with registration of the mark.
The disputed domain name was registered on May 16, 2015, shortly after Complainant submitted its trademark application, but presumably before the application was published. The domain name resolves to a web page offering it for sale for US $850.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that Complainant has not met its burden of proving that it has rights in a trademark or service mark.
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(f), 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.").
To prevail under the Policy, Complainant must show that the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights.
Complainant has applied to register the MCORECLOUD mark, and claims to own common law rights in the mark. A pending application to register a mark does not give rise to trademark rights for purposes of the Policy. See, e.g., Computer Nerds International, Inc. v. Ultimate Search, FA 155179 (Forum June 23, 2003) (even if a Notice of Allowance has been issued); see also Drax Biomass International Inc. v. Joseph Rollins, FA 1534123 (Forum Jan. 25, 2014). Common law rights arise only from actual use of a mark, and for purposes of the Policy, evidence is required that the mark has become a distinctive identifier associated with the Complainant or its goods or services as a result of such actual use. See, e.g., Sony Pictures Television Inc. v. Thomas, Jeff, FA 1625643 (Forum Aug. 6, 2015) (noting that common law rights logically cannot precede a mark's use in commerce).
Complainant has not claimed to have yet made any use of the MCORECLOUD mark in commerce, and has no rights in the mark by virtue of a trademark registration. The Panel therefore concludes that Complainant does not have rights in a relevant mark for purposes of Paragraph 4(a)(i) of the Policy.
As the Panel's finding with respect to Paragraph 4(a)(i) is dispositive, the Panel declines to address the issues of rights or legitimate interests and registration and use in bad faith. See, e.g., YPlan, Inc. v. Kim, Dongjin / Dongjin Kim, FA 1620559 (Forum July 10, 2015).
Having considered the elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.
Accordingly, it is Ordered that the <mcorecloud.com> domain name REMAIN WITH Respondent.
David E. Sorkin, Panelist
Dated: January 18, 2016
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