DECISION

 

J Rimeris LLC v. Jeff and Lexie Bodenmuller / EverSafe Storage LLC

Claim Number: FA2501002136012

 

PARTIES

Complainant is J Rimeris LLC ("Complainant"), represented by Rob Rimeris of J Rimeris LLC, Pennsylvania, USA. Respondent is Jeff and Lexie Bodenmuller / EverSafe Storage LLC ("Respondent"), Florida, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <eversafestorage.com>, registered with NameCheap, Inc.

 

PANEL

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.

 

The Honorable Neil Anthony Brown KC as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on January 20, 2025; Forum received payment on January 20, 2025.

 

On January 20, 2025, NameCheap, Inc. confirmed by e-mail to Forum that the <eversafestorage.com> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. 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 21, 2025, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 10, 2025 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@eversafestorage.com. Also on January 21, 2025, 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 February 11, 2025, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed The Honorable Neil Anthony Brown KC 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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

Complainant made the following contentions:

1.The Complainant owns the EVERSAFE MOVING service mark which was registered with the United States Patent and Trademark Office ("USPTO") on July 23, 2013, Registration Number 4,371,410 and which has been used by the Complainant since 2012 ("the EVERSAFE MOVING trademark").

 

2. The Respondent has not been given permission by the Complainant to use the EVERSAFE MOVING trademark.

 

3. Eversafe Storage is operating a domain name in trademark class #39 and using the EVERSAFE MOVING trademark for the same purposes for which the Complainant uses it.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

However, on February 11, 2025, Forum received the following email from the Complainant:

"Below is the email I received from Jeff about eversafestorage.com Best, Rob

From: Jeff Bodenmuller <jeff@bodenmullerproperties.com>

Sent: Tuesday, February 11, 2025 9:09 AM

To: rob@eversafemoving.com

Subject: Cease and desis: Good morning Rob!

Hey just wanted to let you know we officially changed names and have moved away from EverSafe Storage. The domain has been deactivated as a well. Is there anything else we need to do? Jeff"

FINDINGS

The Complainant is the registered owner of the EVERSAFE MOVING trademark, Registration Number 4,371,410, which was registered with the United States Patent and Trademark Office ("USPTO") on July 23, 2013 ("the EVERSAFE MOVING trademark").

 

The Respondent registered the disputed domain name on January 1, 2025.

 

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted and 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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) ("Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint").

 

Identical and/or Confusingly Similar

Under this element, the Complainant is required to prove that the domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights.

 

The only trademark in evidence is the EVERSAFE MOVING service mark which has been proved. The domain name is <eversafestorage.com>. Therefore, the Complainant must prove that <eversafestorage.com> is either identical to EVERSAFE MOVING or confusingly similar to it. It is obviously not identical to that trademark because the two consist of different words. Nor is it confusingly similar to it. It is not similar because it deals with "eversafe storage" whereas the trademark deals with "eversafe moving", which is not similar but the opposite of it. As the domain name is not similar to the trademark, it cannot be confusingly similar.

 

In saying that, the Panel is conscious of the point made by the Complainant that the trademark is registered in Class 39 which covers both moving and storage. However, that is not the same, as the domain name must be identical or confusingly similar to a trademark and the trademark itself is EVERSAFE MOVING, not EVERSAFE STORAGE.

 

The Complainant has thus not shown that the disputed domain name is identical or confusingly similar to the only trademark that has been proved.

 

As the Panel has only a limited jurisdiction, it can only apply the clear terms of the Policy and the Complainant has not brought itself within those terms.

 

The Complainant has thus not established the first of the three elements it must prove and the Panel is therefore obliged to deny the Complaint.

 

Rights or Legitimate Interests and Registration and Use in Bad Faith

As the Complaint cannot succeed, it is not strictly necessary to deal with the other two elements. However, it is clear that the Complainant would not succeed on either of these two remaining elements as it has not addressed any submissions or evidence on either issue. The Complaint is noticeably silent on these issues, other than to say that it owns a trademark to which the domain name is not identical or confusingly similar, that it has not given permission to use the EVERSAFE MOVING trademark  and that the Respondent is using the domain name and the EVERSAFE MOVING trademark for the same purposes as the Complainant uses them. None of that would have enabled the Complainant on either of these, the second and third elements.

 

DECISION

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 <eversafestorage.com> domain name REMAIN WITH Respondent.

 

 

 

The Honorable Neil Anthony Brown KC

Panelist

Dated: February 12, 2025