Aquatalia IP LLC and RTW Retailwinds Acquisition LLC v. Hamerlinck Jonas / Cloud Design GCV
Claim Number: FA2212002025845
Complainant is Aquatalia IP LLC and RTW Retailwinds Acquisition LLC, represented by Renee Reuter, USA. Respondent is Hamerlinck Jonas / Cloud Design GCV (“Respondent”), Belgium.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <aquaralia.com>, registered with Ascio Technologies, Inc. Danmark - Filial af Ascio technologies, Inc. USA.
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.
Debrett G. Lyons as Panelist.
Complainants submitted a Complaint to Forum electronically on December 29, 2022; Forum received payment on December 29, 2022.
On January 1, 2023, the Registrar confirmed by e-mail to Forum that the <aquaralia.com> domain name is registered with it and that Respondent is the current registrant of the name. The Registrar verified that Respondent is bound by its 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 January 3, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 23, 2023 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@aquaralia.com. Also on January 3, 2023, 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, Forum transmitted to the parties a Notification of Respondent Default.
On January 27, 2023, pursuant to complainants’ request to have the dispute decided by a single-member Panel, the Forum appointed Debrett G. Lyons as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
The Complaint “requests that the Panel issue a decision that the Domain Name registration be transferred.”
The Panel will first consider the procedural issue raised by there being two named complainants but observes that, should the Complaint succeed, the intended transferee has not been specified.
PRELIMINARY PROCEDURAL ISSUE: MULTIPLE COMPLAINANTS
Paragraph 3(a) of the Rules provides that “[a]ny person or entity may initiate an administrative proceeding by submitting a complaint.” Forum’s Supplemental Rule 1(e) defines “The Party Initiating a Complaint Concerning a Domain Name Registration” as a “single person or entity claiming to have rights in the domain name, or multiple persons or entities who have a sufficient nexus who can each claim to have rights to all domain names listed in the Complaint.”
Previous panels have interpreted Forum’s Supplemental Rule 1(e) to allow multiple parties to proceed as one party where they can show a sufficient link to each other and/or to the trademark (see, for example, Vancouver Org. Comm. for the 2010 Olympic and Paralymic Games & Int’l Olympic Comm. v. Malik, FA 666119 (Forum May 12, 2006);Tasty Baking, Co. & Tastykake Invs., Inc. v. Quality Hosting, FA 208854 (Forum Dec. 28, 2003); Am. Family Health Srvs. Group, LLC v. Logan, FA 220049 (Forum Feb. 6, 2004).
The Complaint describes the named complainants, Aquatalia IP LLC, and RTW Retailwinds Acquisition LLC., as “related companies” and states that:
“RTW Retailwinds Acquisition LLC, the owner of the domain name, aquatalia.com, is owned by Saadia Group, LLC following an acquisition in 2000 (see Exhibit A). Aquatalia IP LLC, the owner of the Aquatalia trademark registrations in the United Sates, was also acquired by Saadia Group LLC in 2021 (see Exhibit B).”
Exhibit A is a copy of an article taken from an online resource by the name of “Fashion Network”. It reports on the sale of RTW Retailwinds Acquisition LLC’s “e-commerce business” to Saadia Group, LLC, stating that “according to the company, the sale included … all related intellectual property”. It states that the sale “followed a bankruptcy auction on Friday, August 28 [2020]”.
Exhibit B comprises a copy of an article taken from a website, www.bankruptcompanynews.com, which reports that “Saadia Group Snipes Aquatalia Assets at 15th September 17 [2021] Auction”, plus a copy of an article from the website,
www.reorg.com, essentially reiterating that and the information already described by Exhibit A.
Exhibit E to the Complaint provides copies of USPTO trademark registration certificates from which the Panel notes that the owner by assignment is Aquatalia IP LLC Limited.
Following the UDRP cases cited, an argument for treating multiple complainants as one entity for the purposes of the Forum’s Supplemental Rule 1(e) might be premised on common ownership and control of those complainants. The Complaint makes that submission, but it is problematic given that (i) the Complaint was filed on December 29, 2022, more than a year after the auctions, and (ii) the auctions are described as being for the sale of the assets of the companies, not their shares, to a third party.
It follows that there is no common ownership or control and so, in other circumstances, the Panel would dismiss the case without prejudice to one of the parties bringing the dispute. However, here, and for reasons which follow directly, the Complainant is dismissed in its entirety.
A. Complainant
So far as relevant, all that need be recorded is that the complainants assert trademark rights in AQUATALIA.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The factual findings pertinent to the decision in this case are that:
1. Aquatalia IP LLC Limited is the owner of several USPTO trademark registrations for AQUATALIA and AQUITALIA-composite marks; and
2. the intellectual property assets of Aquatalia IP LLC (Aquatalia IP LLC Limited) and RTW Retailwinds Acquisition LLC were acquired by a third party prior to the filing of the Complaint.
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)(i) of the Policy requires that a complainant must prove as a threshold matter that it has rights in a relevant trademark. That remains so notwithstanding a respondent’s failure to submit a response. For the reasons given already, neither named complainant can show trademark rights in AQUATALIA.
Having failed to establish at least one of the three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.
Accordingly, it is ORDERED that the <aquaralia.com> domain name REMAIN WITH Respondent.
Debrett G. Lyons, Panelist
Dated: January 30, 2023
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