Faster Faster, Inc. DBA Alta Motors v. Jeongho Yoon c/o AltaMart
Claim Number: FA1612001708272
Complainant is Faster Faster, Inc. DBA Alta Motors (“Complainant”), represented by Daniel Lassen of Perkins Coie LLP, California, USA. Respondent is Jeongho Yoon c/o AltaMart (“Respondent”), South Korea.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <altamotors.com>, registered with Tucows Domains Inc.
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 16, 2016; the Forum received payment on December 16, 2016.
On December 19, 2016, Tucows Domains Inc. confirmed by e-mail to the Forum that the <altamotors.com> domain name is registered with Tucows Domains Inc. and that Respondent is the current registrant of the name. Tucows Domains Inc. has verified that Respondent is bound by the Tucows Domains 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 December 19, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 9, 2017 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 December 19, 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 January 23, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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 that the domain name be transferred from Respondent to Complainant.
Operating under the ALTA MOTORS name and mark, Complainant makes and markets electric motorcycles.
Complainant holds a registration for the ALTA MOTORS trademark, which is on file with the United States Patent and Trademark Office (“USPTO”) (Registry No. 5,082,683, registered November 15, 2016).
Complainant has also developed substantial goodwill and common law rights in the ALTA MOTORS mark dating from 2016.
Respondent registered the domain name <altamotors.com> on or about October 28, 2003.
The domain name is confusingly similar to Complainant’s ALTA MOTORS mark.
Respondent has not been commonly known by the domain name.
Complainant has not licensed or otherwise authorized Respondent to use the ALTA MOTORS mark.
Respondent is not making either a bona fide offering of goods or services or a legitimate non-commercial or fair use of the domain name.
The domain name resolves to a blank webpage displaying an error message.
Respondent has no rights to or legitimate interests in the domain name.
Respondent is a known serial cyber-squatter with prior UDRP actions against it.
Respondent currently holds over two-hundred “Alta” related domain names presumably for illegitimate commercial gain.
Respondent’s passive holding and lack of active use of the domain name evinces its bad faith in registering and using the domain name.
Respondent knew of Complainant and its rights to the ALTA MOTORS mark when it registered the domain name.
Respondent has registered and is using the domain name in bad faith.
Respondent failed to submit a Response in this proceeding.
Complainant has failed to prove that Respondent registered the contested domain name 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 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 to or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Respondent in bad faith.
In view of Respondent's failure to submit a response, the Panel will, pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules, decide this proceeding on the basis of Complainant's undisputed representations, and, pursuant to paragraph 14(b) of the Rules, draw such inferences as it deems appropriate. The Panel is entitled to accept all reasonable allegations and inferences set out 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) (finding that a respondent’s failure to respond allows all reasonable inferences of fact in the allegations of a UDRP complaint to be deemed true). See also Talk City, Inc. v. Robertson, D2000-0009 (WIPO February 29, 2000): “In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”
Policy ¶ 4(a)(iii) provides that a UDRP complainant must prove to the satisfaction of an administrative panel both that a respondent registered a contested domain name in bad faith and that it now uses that domain name in bad faith. On the facts before us, this dispute turns on the threshold question whether Respondent registered the <altamotors.com> domain name in bad faith. If we conclude that Respondent did not register the domain name in bad faith, as that term is understood in Policy ¶ 4(a)(iii), our inquiry ends. See, for example, Creative Curb v. Edgetec Int’l Pty. Ltd., FA 116765 (FORUM September 20, 2002) (finding that, because a UDRP complainant must prove all three elements set out in Policy ¶ 4(a) in order to obtain relief from an administrative panel, a complainant’s failure to prove any one of those elements makes inquiry into the others unnecessary). See also Hugo Daniel Barbaca Bejinha v. Whois Guard Protected, FA 836538 (FORUM December 28, 2006) (declining to inquire into a respondent’s rights to or legitimate interests in a challenged domain name or its registration and use of that domain name in bad faith where a UDRP complainant could not satisfy the proof requirements of Policy ¶ 4(a)(i) as to that complainant’s rights in a mark or the existence of confusing similarity between the mark and that domain name).
The facts determinative of this question in the instant proceeding, as set out in the Complaint, are these:
1. Respondent registered the domain name <altamotors.com> on
or about October 28, 2003, and that registration has remained with Respondent from that time to the present;
2. Complainant has rights in the ALTA MOTORS trademark by reason of its registration of the mark with the United States Patent and Trademark Office (Registry No. 5,082,683, registered November 15, 2016, on an application filed September 8, 2014, with a first use in commerce dating from April 18, 2016); and
3. Complainant asserts that it has also established common law rights in its ALTA MOTORS mark dating from, perhaps, as early as April 18, 2016.
These facts permit of no other conclusion than that Respondent could not have registered the <altamotors.com> domain name in bad faith. Respondent registered the domain name more than a decade before Complainant introduced the ALTA MOTORS mark in commerce. Respondent therefore could not have entertained bad faith intentions respecting the mark because it could not have contemplated Complainant’s then non-existent rights in it at the moment the domain name was registered. See, for example, Telecom Italia S.p.A. v. NetGears LLC, FA 944807 (FORUM May 16, 2007) (finding that a respondent could not have registered a disputed domain name in bad faith where that respondent registered the domain name before a UDRP complainant began using the mark relied upon in its complaint).
This has long been the consensus judgment of UDRP panelists. See Interep Nat'l Radio Sales, Inc. v. Internet Domain Names, Inc., D2000-0174 (WIPO May 26, 2000) (finding no bad faith where a respondent registered a disputed domain name before a UDRP complainant’s first use of its mark); and see Open Sys. Computing AS v. degli Alessandri, D2000-1393 (WIPO December 11, 2000) (finding no bad faith where a respondent registered a domain name before the filing of an application for registration of an allegedly similar trademark and commencement of its use in commerce by a UDRP complainant); further see Aspen Grove, Inc. v. Aspen Grove, D2001-0798 (WIPO October 5, 2001) (finding it “impossible” for a respondent to have registered a disputed domain name in bad faith where a UDRP complainant did not exist at the time of a respondent’s domain name registration).
The Panel therefore finds that Complainant has failed to show that Respondent registered the contested <altamotors.com> domain name in bad faith within the contemplation of Policy ¶ 4(a)(iii).
For this reason, we need not inquire into other aspects of the Complaint.
Complainant having failed to establish one of the three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be, and it is, hereby, DENIED.
Accordingly, it is Ordered that the <altamotors.com> domain name REMAIN WITH Respondent.
Terry F. Peppard, Panelist
Dated: February 6, 2017
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