Patrick Shawn O’Grady v. sam mckinley / cti ind,inc
Claim Number: FA1806001790052
Complainant is Patrick Shawn O’Grady (“Complainant”), represented by James R. Salisbury of The Salisbury Firm, P.C., Wyoming, USA. Respondent is sam mckinley / cti ind,inc (“Respondent”), Colorado, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <pklures.com>, registered with GoDaddy.com, LLC.
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.
Debrett G. Lyons as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 4, 2018; the Forum received payment on June 12, 2018.
On June 6, 2018, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <pklures.com> 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 June 18, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 9, 2018 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 firstname.lastname@example.org. Also on June 18, 2018, 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 July 11, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Debrett G. Lyons 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 asserts trademark rights in PKLures and alleges that the disputed domain name is identical to its trademark.
Complainant alleges that Respondent has no right or interest in the disputed domain name.
Respondent failed to submit a Response in this proceeding.
The factual findings pertinent to the decision in this case are that:
1. PK Products, Inc. (the “Company”) was incorporated in the State of Wyoming in 2008;
2. Complainant and Respondent were the named incorporators of the Company;
3. Respondent created the disputed domain name on September 4, 2008 in his own name;
4. Complainant filed and holds United States Patent and Trademark Office Reg. No. 5,135,243, for the trademark PKLures (Stylized) (the “trademark”) in his own name;
5. the trademark registration was filed on January 16, 2015 and registered on February 7, 2017 and records a first use in commerce date for the trademark of January 1, 2015;
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 contradictory.[i]
That said, this is a case where a preliminary procedural issue may be arisen as to whether the dispute was outside the scope of the Policy. The parties are known to each other through a common commercial enterprise and there is no claim in the Complaint that the trademark has either been registered or used in bad faith. Nevertheless, in the absence of a Response the Panel has determined that the third element of the Policy is determinative of the matter and that is the preferred way to reach a decision on this occasion.
No findings required.
No findings required.
Complainant must prove on the balance of probabilities both that the disputed domain name was registered in bad faith and used in bad faith.
Further guidance on that requirement is found in paragraph 4(b) of the Policy, which sets out four circumstances, any one of which is taken to be evidence of the registration and use of a domain name in bad faith if established. However, in this case it is not necessary to look more closely at those other circumstances since there is no evidence which might reasonably infer that the disputed domain name was registered in bad faith, still less any evidence which would support such a finding almost a decade after the event.
The parties were, together, responsible for the formation of the Company. Complainant asserts that the Company was licensed to use the trademark. The trademark was filed eight years after the Company formation and in Complainant’s name. There is no explanation why that was so. The disputed domain name was created in the same year the Company was formed. The dates suggest that the domain name was in fact registered before the Company formation. The reasonable inference is that the domain name was created for use by the soon to be incorporated body. There is no inference of bad faith registration. Complainant has stated that it has asked Respondent for transfer of the domain name without satisfaction. There is no further detail and no evidence of the relevant correspondence. The Panel finds that Complainant has failed to satisfy paragraph 4(a)(iii) of the Policy.[ii]
Having failed to establish one of the three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.
Accordingly, it is Ordered that the <pklures.com> domain name REMAIN WITH Respondent.
Debrett G. Lyons, Panelist
Dated: July 22, 2018
[i] See, for example, 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); 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.”).
[ii] See, for example, Tristar Products, Inc. v. Domain Administrator / Telebrands, Corp., FA 1597388 (FORUM Feb. 16, 2015) (“Complainant makes conclusory allegations of bad faith but has adduced no specific evidence that warrants a holding that Respondent proceeded in bad faith at the time it registered the disputed domain name. Mere assertions of bad faith, even when made on multiple grounds, do not prove bad faith.”); see also Chris Pearson v. Domain Admin / Automattic, Inc., FA 1613723 (FORUM Jul. 3, 2015) finding that the complainant could not establish the respondent registered and used the disputed domain name in bad faith because it failed to present evidence that would support such a holding.
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