Charles Duggan v. Thomas Duggan / SJDTech
Claim Number: FA1910001868362
Complainant is Charles Duggan (“Complainant”), represented by Michael J. Douglas of Leak, Douglas & Morano, PC, Alabama, USA. Respondent is Thomas Duggan / SJDTech (“Respondent”), Illinois, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <duggan.com> (“Domain Name”), 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.
Nicholas J.T. Smith as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 24, 2019; the Forum received payment on October 24, 2019.
On October 25, 2019, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <duggan.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 November 1, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 21, 2019 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 firstname.lastname@example.org. Also on November 1, 2019, 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.
A timely Response was received and determined to be complete on November 1, 2019.
On November 4, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Nicholas J.T. Smith 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.
Complainant requests that the Domain Name be transferred from Respondent to Complainant.
Complainant operates a property tax consulting business in connection with the DUGGAN PROPERTY SERVICES mark. Complainant has rights in the DUGGAN PROPERTY SERVICES mark through its trademark registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 5,753,653, registered May 14, 2019; filed Jul. 27, 2018). Respondent’s <duggan.com> domain name is confusingly similar to Complainant’s DUGGAN PROPERTY SERVICES mark as it incorporates the dominant portion of the mark, “DUGGAN,” along with a “.com” generic top-level domain (“gTLD”).
Respondent has no rights or legitimate interests in the <duggan.com> domain name. Complainant retained an investigation firm to conduct research on Respondent’s use of the Domain Name, which revealed no traffic and repeated calls to a number at the Domain Name resulted in unanswered and voicemails. Complainant has also been forced to register the <duggan.cc> domain name since 1995 as a result of Respondent’s registration of the Domain Name.
Respondent registered and uses the <duggan.com> domain name in bad faith. Respondent registered the Domain Name to prevent Complainant’s registration and use of the Domain Name for its property tax consulting business. Respondent’s only use of the Domain Name was to maintain an email address. Finally, Respondent also failed to sufficiently respond to Complainant’s attempts to resolve this dispute.
Respondent registered the <duggan.com> domain name on December 18, 1995 in an attempt to learn about creating websites and registering domain names. Respondent has used the Domain Name to develop websites, early software creation, and maintaining an email address for Respondent and its family members. Respondent’s Domain Name contains its last name and there is no information to infer “Property Services” at the domain name.
Respondent has legitimate interests in the Domain Name and did not register or use the Domain Name in bad faith. The Domain Name contains Respondent’s last name, Duggan. Furthermore, Respondent did not attempt to sell the Domain Name to Complainant; rather, Complainant attempted to purchase the Domain Name from Respondent which Respondent rejected.
Complainant, having failed to establish that Respondent registered and used the Domain Name in bad faith, has not established all required elements of its claim, and thus its complaint must be denied.
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.
The Panel finds that Complainant failed to meet its burden of proof of bad faith registration and use under Policy ¶ 4(a)(iii), and thus the Panel need not consider the other elements. See Tristar Products, Inc. v. Domain Administrator / Telebrands, Corp., FA 1597388 (Forum Feb. 16, 2015) (“Complainant makes conclusory allegations of bad faith but has adduced no specific evidence that warrants a holding that Respondent proceeded in bad faith at the time it registered the disputed domain name. Mere assertions of bad faith, even when made on multiple grounds, do not prove bad faith.”); see also Chris Pearson v. Domain Admin / Automattic, Inc., FA 1613723 (Forum Jul. 3, 2015) (finding that the complainant could not establish the respondent registered and used the disputed domain name in bad faith because it failed to present evidence that would support such a holding).
It is undisputed (in that it is stated in both the Complaint and Response), that Respondent registered the Domain Name on December 18, 1995 for the purpose of maintaining an e-mail address (or addresses for his family) that corresponded to the Respondent’s surname, Duggan. Respondent, as is apparent in correspondence with the Forum, still uses the Domain Name for that purpose. As such the Domain Name was not registered or used in bad faith. See RMO, Inc. v. Burbidge, FA 96949 (Forum May 16, 2001).
While Complainant’s first use of the DUGGAN PROPERTY SERVICES mark may (at best) precede the registration of the Domain Name by four months, Complainant did not seek to register the DUGGAN PROPERTY SERVICES mark with the USPTO until almost 23 years after the registration of the Domain Name. Complainant provides no evidence of its reputation at the registration date or any reason why Respondent would have been aware of Complainant at the time of its registration. Given the obvious and uncontested reason for the registration of the Domain Name (that it corresponded to Respondent’s surname) and the lack of any evidence that Respondent has ever used the Domain Name to target Complainant’s business in any way, the Panel declines to find that the Respondent registered or used the Domain Name with Complainant in mind. Such a claim is purely speculative.
Complainant’s remaining submission is that Respondent has failed to enter into negotiations with Complainant to sell the Domain Name to it. Respondent’s unwillingness to sell the Domain Name to Complainant is not in any way illustrative of bad faith registration or use. Therefore, the Panel finds Respondent did not register the Domain Name in bad faith.
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 <duggan.com> domain name REMAIN WITH Respondent.
Nicholas J.T. Smith, Panelist
Dated: November 6, 2019
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