Sanabul v. Wasea Qubadi
Claim Number: FA1709001748693
Complainant is Sanabul (“Complainant”), represented by Imran Jawaid of Sanabul, California, USA. Respondent is Wasea Qubadi (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <sanabul.com>, registered with DotNamed LLC.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 12, 2017; the Forum received payment on September 12, 2017.
On September 15, 2017, DotNamed LLC confirmed by e-mail to the Forum that the <sanabul.com> domain name is registered with DotNamed LLC and that Respondent is the current registrant of the name. DotNamed LLC has verified that Respondent is bound by the DotNamed 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 September 22, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 12, 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 September 22, 2017, 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, October 17, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Kenneth L. Port 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 that the domain name be transferred from Respondent to Complainant.
Complainant, Sanabul, is a manufacturer of athletic and combat sports gear. Complainant uses the SANABUL mark to market and provide such equipment, and has rights therein based upon registration with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 4,615,019, registered Sep. 30, 2014). See Compl. Annex, at 9. Respondent’s <sanabul.com> is identical to Complainant’s mark.
Respondent has no rights or legitimate interests in the <sanabul.com> domain name. Respondent is not commonly known by the disputed domain name; rather, Respondent’s name is Wasea Qubadi, the owner of Pro Fight Shop, a competing company. The disputed domain name is not being used to make a bona fide offering of goods or services or for a legitimate noncommercial or fair use. Rather, the domain name resolves to a posted image stating “DOMAIN HAS BEEN SUSPENDED” in a possible attempt to deter potential customers and damage Complainant’s reputation.
Respondent registered the <sanabul.com> domain name in bad faith. The registration was made in order to prevent Complainant from reflecting the SANABUL mark in a domain name. Additionally, the domain name was registered in order to disrupt the business of Complainant.
Respondent failed to submit a Response in this proceeding. The disputed domain name, <sanabul.com>, was created July 3, 2014.
Given that the disputed domain name was registered by Respondent some five months prior to the issuance of Complainant’s trademark and given the fact that Complainant alleges no secondary meaning in that mark prior to that time, the Panel has no choice but to find for Respondent.
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 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.”).
Respondent registered the disputed domain name on July 3, 2014. Complainant’s trademark, SANABUL, issued on September 30, 2014 or some five months after the disputed domain name was registered. In such circumstances, in order to have cognizable trademark rights, Complainant must show secondary meaning in the trademark prior to the registration date of the disputed domain name.
In this case, Complainant has not only failed to establish secondary meaning, it fails to even mention it in its sparse complaint. Although this is a default case and the standard is, therefore, low, it is not non-existent. The Panel finds that the Complainant has failed to carry its most important burden here: to establish cognizable trademark rights.
As such, the Panel finds for Respondent and, as such, will forgo a full three-factor analysis of this case.
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 <sanabul.com> domain name remain with Respondent.
Kenneth L. Port, Panelist
Dated: October 18, 2017
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