DECISION

 

Sam Ash LLC v. Keith Reardon

Claim Number: FA2512002194369

 

PARTIES

Complainant is Sam Ash LLC ("Complainant"), represented by Karen Artz Ash of Katten Muchin Rosenman LLP, New York, USA. Respondent is Keith Reardon ("Respondent"), represented by Ira Bierman, New York, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <smashmusic.net>, registered with Godaddy.Com, Llc.

 

PANEL

The undersigned certify that they have acted independently and impartially and to the best of their knowledge have no known conflict in serving as Panelist in this proceeding.

 

David P. Miranda and Marylee Jenkins as Panelists and Gerald M. Levine as Chair.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on December 12, 2025; Forum received payment on December 12, 2025.

On December 15, 2025, Godaddy.Com, Llc confirmed by e-mail to Forum that the <smashmusic.net> 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 16, 2025, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 5, 2026, 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@smashmusic.net. Also on December 16, 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.

 

A timely Response was received and determined to be complete on January 5, 2026.

 

On January 6, 2026, the Complainant submitted an Additional Submission. 

 

 On January 6, 2026, the Respondent filed an objection to the Complainant's Additional Submission and on January 16, 2026 submitted an Additional Submission.

 

On January 9, 2026, pursuant to Complainant's request to have the dispute decided by a three-member Panel, Forum appointed David P. Miranda and Marylee Jenkins as Panelists and Gerald M. Levine as Chair.

 

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.

 

RELIEF SOUGHT

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

 

COMPLAINANT'S ADDITIONAL SUBMISSION

Following its receipt of Respondent's Response Complainant filed an additional submission "to correct factual inaccuracies and other mischaracterizations set forth by Respondent in his Response filed January 5, 2026 [ ], a Response which further obfuscates the core issues by reliance on irrelevant evidence. The arguments herein are thus in direct response to Respondent's arguments in his Response and therefore could not have been specifically addressed in the Complainant's First Amended Complaint filed December 16, 2025."

 

This Additional Submission provoked an email from Respondent objecting to the Additional Submission, alternatively that if accepted that it be permitted to file and serve its own Supplemental submission. On January 16, 2026, the Respondent submitted a Supplemental submission.

 

Having carefully reviewed Complainant's Amended Complainant and the Response, and in light of the prior Panel's decision, the Panel finds it unnecessary to consider either Complainant's or Respondent's Additional Submissions.

 

EFFECT OF PREVIOUS UDRP DECISION  

Both Parties acknowledge that a previous decision was recently issued involving the same Parties and the same disputed domain name as in this case. See Sam Ash LLC v. Keith Reardon, FA 2188625 (Forum Dec. 10, 2025) (Sam Ash LLC v. Keith Reardon 1). The Panel in Sam Ash LLC v. Keith Reardon 1 dismissed the complaint and ordered the <smashmusic.net> domain name to remain with Respondent.

The Complainant has responded to the dismissal of its complaint by filing a new complaint and requesting that it be submitted to a 3-member Panel. Whether a one- or three-member Panel, its members are guided by the Policy and its Rules. These do not provide for a refiling of dismissed complaints, and only exceptionally are they allowed. See Grove Broadcasting Co. Ltd. V. Telesystems Communications Ltd., WIPO Claim No. D2000-0703. The jurisprudence sets a high burden on a refiling. See WIPO Overview, 3.0 at Sec. 4.18:

Panels have accepted refiled complaints only in highly limited circumstances such as (i) when the complainant establishes that legally relevant developments have occurred since the original UDRP decision, (ii) a breach of natural justice or of due process has objectively occurred, (iii) where serious misconduct in the original case (such as perjured evidence) that influenced the outcome is subsequently identified, (iv) where new material evidence that was reasonably unavailable to the complainant during the original case is presented, or (v) where the case has previously been decided (including termination orders) expressly on a "without prejudice" basis. (Number (v) was added to the Overview in 2011).

The question arises as to whether this Complaint should be denied applying the general principle that a case should not be litigated except where certain limited conditions apply. If litigated, or here it is a final decision under the UDRP dismissing the complaint, the decision is res judicata. Grove Broadcasting, supra. (holding that the complainant should "'get it right the first time and should have provided all the information necessary to prove its case from the material contained in the Complaint and its annexes alone".) See also Creo Products Inc & anor v. Website in Development, D2000-1490 (WIPO Jan. 19, 2001) ("Creo 2") ("In order for such a refiled complaint to be entertained under the Policy, it is the refiling complainant's burden to demonstrate that the refiled complaint constitutes 'a truly new action' under the Policy, and not just an application for readjudication of the previous complaint."); Tina Patterson/Enchanted Treehouse Cottages, LLC v. Barbara Elias Perciful, FA 2084182 (Forum Mar. 7, 2024) (citing earlier authority, the Panel held: "The Respondent's submission that the present Complaint is barred for res judicata is therefore correct and beyond argument. The prior proceeding was between the same parties, concerned the same domain name, exclusively so, and was conducted on the same issues that the Complainant has now raised in the new Complaint.").

 

Reconsideration of a complaint dismissed with prejudice is barred by the doctrine of res judicata. However, if the prior Panel dismissed the complaint without prejudice, a subsequent Panel may consider the merits of the dispute anew. See Jones Apparel Group Inc. v. Jones Apparel Group.com., D2001-1041 ("Jones Apparel 2") ("The Panelist in the First Complaint did not suggest the Complainant submit additional evidence pursuant to Rule 12. Instead, he gave the green light in the clearest possible way to refiling the Complaint to correct the omissions in the First Complaint."). 

Here, the Complainant is not eligible to have its initial complaint reconsidered under circumstances (i), (ii), (iii), or (iv). See Art4Now, Inc. v. Gerald Waggoner / The Waggoner Law Firm, FA 2074746 (Forum Jan. 9, 2024) (denying complaint because "the Original Decision was not made on a 'without prejudice' basis." Thus, if eligible at all it would have to be under circumstance (v), but the prior Panel did not decide the case "expressly on a 'without prejudice basis." The important preliminary issue which arises in this case is whether the Complaint's refiled complaint, can be entertained under the Policy. This Panel has to consider whether the prior Panel "gave [a] green light … to refiling the Complaint"). The prior Panel concluded its assessment by noting: 

 

To be clear: The Panel's decision here is based solely on the Complaint's limited record and nonexistent legal arguments and should not be construed as anything other than a finding that Complainant has failed to satisfy its burden of proof in this proceeding.

It is what the prior Panel in this matter did not do that is critical to our assessment. It did not follow up its assessment by expressly stating that its decision was without prejudice.  If the prior Panel  intended that its  decision  was without prejudice it would have reflected such a determination in the decision. See, for example, Transamerica Corporation v. wang meng / yangzi ji tuan you xian gong si / White Lewi3, FA 2171270 (Forum Sept. 19, 2025) ("In making this finding this Panel is conscious that the arguments and assertions advanced by Complainant are plausible notwithstanding that they are not proven. In these circumstances, and in particular given that Respondent has not engaged in this proceeding, it is appropriate that the decision of this Panel should be made without prejudice to Complainant's right to bring further proceedings in relation to this domain name registration."); Boxford Chimney Sweep, LLC v. Keren Leve / Magnetic Services LLC, FA 2124552 (Forum Dec. 12, 2024) ("But again, and for the sake of completeness, the Panel wishes to note that if the Complainant did have a trademark, the Panel would likely find Respondent's use of the Disputed Domain Name as being in bad faith." And concluded in all caps "DISMISSED WITHOUT PREJUDICE."). The subsequent Panel in Eleven, Inc. v. lei zi qi / guang zhou qiao rui dian zi shang wu you xian gong si, FA 2138997 (Forum Mar. 1, 2025) noted that the "the Earlier Decision was expressly without prejudice to the Complainant filing a new complaint at any time."; Lämpöpuuyhdistys Ry v. Transfer Agent, Dan.com, Global Forest Lumber Company LLC and Blue Lake Lumber LLC, Case No. D2025-1372 ("the Panel found sufficient changed circumstances and new evidence to warrant a refiled Complaint)." 

The Panel has carefully reviewed the Amended Complaint and the annexed documentary evidence. It is clear from the prior  Panel's discussion that the filing of the initial complaint was made without the necessary investigation of the circumstances and without proper consideration of the evidentiary demands of the UDRP. See Amnack Limited t/a Doncaster Cables v. 刘青 (liu qing yun), 唐卡斯特（广东）电缆科技有限公司 (tang ka si te guang dong dian lan ke ji you xian gong si), WIPO Case No. D2023-4852 ("these proceedings are not intended to obstruct rights holders' access to competent legal representation aimed at achieving a just outcome").

 

Even with this refiling of the complaint Complainant has failed to bring to the Panel's attention any authority that would support its refiling.  Complainant's filing of a complaint with a "limited record and nonexistent legal arguments" as in its first UDRP filing and without any documentary evidence has consequences. Sam Ash LLC v. Keith Reardon, Case No. FA 2188625 (Forum Dec. 10, 2025); see Kalyan Jewellers India Limited v. Subha Bharat, Case No. D2024-5279 (where the panel in the earlier "proceeding determined, under the terms of the Policy, that the Complainant had failed to establish that the disputed domain name had been originally registered in bad faith, and that the complaint must therefore fail. The Panel finds there to be nothing in the Complainant's current submissions that requires the original panel's findings in that regard to be reevaluated, or which otherwise meets any of the criteria mentioned in section 4.18 of WIPO Overview 3.0 for a refiled claim to be accepted."). For the avoidance of doubt, the Panel does not regard the observations of the prior Panel as an invitation to Complainant to refile its complaint.

We therefore decline to accept the refiled complaint.

DECISION

In view of this decision, it is unnecessary to proceed with an assessment of the three elements. Accordingly, for the reasons set forth above, the refiled complaint is DENIED. The Panel notes that this decision is without prejudice to the Complainant taking this matter to a court of competent jurisdiction.

Accordingly, it is ORDERED that the <smashmusic.net> domain name remain with the Respondent.

 

 

 

David P. Miranda, Marylee Jenkins, Panelists, and Gerald M. Levine, Chair

Dated: January 20, 2026