Daniel Anghelcev v. Nerses Arutunyan
Claim Number: FA1707001739476
Complainant is Daniel Anghelcev (“Complainant”), California, USA. Respondent is Nerses Arutunyan (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <newcarsuperstore.com> and <carscouts.com>, registered with GoDaddy.com, 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.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 11, 2017; the Forum received payment on July 13, 2017.
On July 13, 2017, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <newcarsuperstore.com> and <carscouts.com> domain names are registered with GoDaddy.com, LLC and that Respondent is the current registrant of the names. 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 July 17, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 7, 2017 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@newcarsuperstore.com, postmaster@carscouts.com. Also on July 17, 2017, 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 Forum transmitted to the parties a Notification of Respondent Default.
On August 19, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Kenneth L. Port 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 names be transferred from Respondent to Complainant.
A. Complainant
Complainant created its business in 2012. See Amend Compl., at ¶ [6][c]. Complainant holds a Seller’s Permit in the state of California under the name “NEWCARSUPERSTORE.COM” of “CAR SCOUTS LLC.” See Compl., at Attached “license for car scouts.pdf.” Complainant filed to register the CAR SCOUTS and NEWCARSUPERSTORE.COM marks with the United States Patent and Trademark Office (“USPTO”) (e.g., Ser. No. 87,452,002; filed May 16, 2017; Ser. No. 87,459,401; filed May 22, 2017, respectively). See Amend. Compl., at Attached “trademark newcaresuperstore.pdf;” id. at Attached “trademark carescouts.pdf.”
Complainant registered <carscouts.com> on July 26, 2012 and <newcarsuperstore.com> on September 15, 2012. See Amend. Compl., at Attached “carscouts.com purchase receipt July 2012.pdf;” id. at Attached “newcaresuperstore.com receipt 2012.pdf.” Respondent obtained <newcarsuperstore.com> and <carscouts.com> on May 7, 2017, by impersonating Complainant and gaining access to Complainant’s GoDaddy.com account. See Amend. Compl., at ¶ [7][a]; id. at Attached “yahoo email notifications 2.” The <newcarsuperstore.com> and <carscouts.com> domains currently redirect Complainant’s customers to Respondent’s websites, <carscoutsleasing.com> and <carsflip.com>, that are in direct competition with Complainant. See Amend. Compl., at ¶ [7][c].
B. Respondent
Respondent failed to submit a Response in this proceeding. Respondent registered <newcarsuperstore.com> and <carscouts.com> on May 8, 2017.
The Panel finds that Complainant has failed to establish its rights and interest in and to the alleged trademarks NEW CAR SUPER STORE or CAR SCOUTS and, as such, has failed to adequately make out its case under the Policy.
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 (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.”).
If Complainant is to be believed, he tells an unfortunate tale of what amounts to inappropriate conduct by Respondent. However, the purpose of the Policy is to prevent one entity from usurping another entity’s trademark and registering that as a domain name. As a first principle, Complainant must show that it has trademark rights.
There are two ways to establish such trademark rights. First, the registration of the mark with any governmental authority as a trademark is usually sufficient to establish the presumption of legitimate trademark claims. Short of a trademark registration, a complainant can establish trademark rights by establishing secondary meaning. In this case, Complainant has done neither.
Complainant’s trademark applications occurred some two weeks after the disputed domain names were registered. In such a case, the trademark applications are irrelevant for establishing trademark rights in Complainant as, to be relevant, the trademark applications must occur before Respondent registered the domain names.
Further, Complainant makes no mention of secondary meaning and provides no evidence of such. Secondary meaning can be established through use of the mark in commerce, consumer recognition of the mark, unsolicited media coverage of the mark, or other evidence that shows the mark works in the market place to identify Complainant. Complainant merely shows copies of its business license in the State of California. This is not sufficient to show that it has trademark rights in the disputed domain names.
As the trademark applications are not relevant as they post-dated the registration of the domain names by Respondent and there is no claim nor evidence proffered regarding secondary meaning, the Panel has no choice but to dismiss this complaint.
As Complainant has failed to meet its initial burden to show it has rights or interests in or to the trademarks at issue, the Panel will forgo an analysis of the other elements of a claim under the Policy.
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 <newcarsuperstore.com> and <carscouts.com> domain names remain with Respondent.
Kenneth L. Port, Panelist
Dated: August 10, 2017
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