Igor Vaks v. WebmasterCast.com
Claim Number: FA1611001703551
Complainant is Igor Vaks (“Complainant”), represented by Carolyn Quach of 4043 Irving Place, California, USA. Respondent is WebmasterCast.com (“Respondent”), Arizona, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <socialedge.com>, registered with GoDaddy.com, LLC.
The undersigned certifies he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Houston Putnam Lowry, Chartered Arbitrator, as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 17, 2016; the Forum received payment on November 17, 2016.
On November 20, 2016, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <socialedge.com> domain name is 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 November 22, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 12, 2016 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 email@example.com. Also on November 22, 2016, 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 December 19, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Houston Putnam Lowry, Chartered Arbitrator, 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 the domain name be transferred from Respondent to Complainant.
Social Edge is a Delaware Corporation. Complainant has rights in the SOCIAL EDGE mark based upon registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 4,724,542, registered Apr. 21, 2015). Respondent’s domain name <socialedge.com> is identical to Complainant’s mark, simply omitting the space and appending the generic top level domain name (“gTLD”) “.com.”
Respondent does not have rights or legitimate interests in the domain name. Respondent is not commonly known by <socialedge.com>. Complainant has attempted to contact Respondent to purchase the disputed domain name, but Respondent has not responded.
Respondent is using the domain in bad faith. Respondent is disrupting Complainant’s business by creating confusion as to the legitimacy of Complainant’s mark when prospective clients or employees attempt to visit <socialedge.com>. Respondent has been unresponsive and continues to maintain ownership of the domain name without a legitimate purpose.
Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is NOT identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Complainant has failed to prove Respondent has no rights or legitimate interests in respect of the domain name; and
(3) Complainant has failed to prove the domain name has been registered and is being used in bad faith.
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 Complainant prove the following three elements to obtain an order cancelling or transferring a domain name:
(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.”).
Complainant has not shown it owns the trademark in question (which is registered to Social Edge, Inc., which is distinct from Complainant Igor Vaks). Complainant has not described why Complainant can initiate this proceeding relying on the rights of a third party, Social Edge.
The Panel finds Policy ¶4(a)(i) NOT satisfied.
The fact Complainant tried to purchase the disputed domain name is neither here nor there. The fact Respondent did not reply is also not relevant. Complainant claims “The domain name has no reason, business, hobby, idea or anything legitimate currently posted…” This conclusory statement (which was made under a different section of the Complaint) is too vague to support a decision in Complainant’s favor regarding rights. It is up to Complainant to make its case, not to have the Panel do it for Complainant.
Complainant has not established a prima facie case in support of its arguments Respondent lacks rights and legitimate interests under Policy ¶4(a)(ii). See Terminal Supply, Inc. v. HI-LINE ELECTRIC, FA 746752 (Forum Aug. 24, 2006) (holding that the complainant did not satisfactorily meet its burden and as a result found that the respondent had rights and legitimate interests in the domain name under UDRP ¶4(a)(ii)); see also Workshop Way, Inc. v. Harnage, FA 739879 (Forum Aug. 9, 2006) (finding that the respondent overcame the complainant’s burden by showing it was making a bona fide offering of goods or services at the disputed domain name).
The Panel finds Policy ¶4(a)(ii) NOT satisfied.
Complainant failed to meet the burden of proof of bad faith registration and use under Policy ¶4(a)(iii). See Starwood Hotels & Resorts Worldwide, Inc. v. Samjo CellTech.Ltd, FA 406512 (Forum Mar. 9, 2005) (finding that the complainant failed to establish that the respondent registered and used the disputed domain name in bad faith because mere assertions of bad faith are insufficient for a complainant to establish Policy ¶4(a)(iii); see also Graman USA Inc. v. Shenzhen Graman Indus. Co., FA 133676 (Forum Jan. 16, 2003) (finding that general allegations of bad faith without supporting facts or specific examples do not supply a sufficient basis upon which the panel may conclude that the respondent acted in bad faith).
Complainant has utterly failed to address the issue the disputed domain name was registered on December 14, 2001. The SocialEdge trademark was issued April 21, 2015 (nearly 14 years later). Complainant has not explained how Respondent registered the domain name in bad faith when Complainant did not even exist.
The Panel finds Policy ¶4(a)(iii) NOT satisfied.
It seems clear Complainant is proceeding pro se. Therefore, the Panel grants Complainant leave to recommence proceeding. The Panel admonishes Complainant to consult someone familiar with UDRP proceedings before re-filing.
Having not established all three elements required under the ICANN Policy, the Panel concludes relief shall be DENIED.
Accordingly, it is Ordered the <socialedge.com> domain name REMAIN WITH Respondent.
Houston Putnam Lowry, Chartered Arbitrator, Panelist
Dated: Thursday, December 29, 2016
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