Air Serv International, Inc. v. Stu Willcuts
Claim Number: FA1902001831670
Complainant is Air Serv International, Inc. (“Complainant”), represented by Stuart Willcuts, Virginia, USA. Respondent is Stu Willcuts (“Respondent”), Massachusetts, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <alrserv.org>, registered with Wild West Domains, 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.
Ho Hyun Nahm, Esq. as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 27, 2019; the Forum received payment on February 27, 2019.
On February 28, 2019, Wild West Domains, LLC confirmed by e-mail to the Forum that the <alrserv.org> domain name is registered with Wild West Domains, LLC and that Respondent is the current registrant of the name. Wild West Domains, LLC has verified that Respondent is bound by the Wild West Domains, 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 March 6, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 26, 2019 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 March 6, 2019, 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 March 28, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Ho Hyun Nahm, Esq. 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.
i) The <alrserv.org> domain name is confusingly similar to Complainant’s <airserv.org> domain name.
ii) Respondent lacks rights or legitimate interests in respect of the <alrserv.org> domain name because the domain name is being used in furtherance of a fraudulent email scheme.
iii) Respondent registered and uses the disputed domain name in bad faith because Respondent uses the domain name for an email address in connection with fraud.
Respondent did not submit a Response.
1. The disputed domain name was registered on February 21, 2019.
2. Complainant has failed to establish registered or common law trademark rights in the AIRSERV.ORG mark.
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.”).
Complainant does not provide any information regarding any alleged trademark registrations or common law rights. Complainant argues that the disputed domain name is confusingly similar to its AIRSERV.ORG mark. Complainant does not elaborate on its argument.
To establish unregistered or common law trademark rights for purposes of the UDRP, the complainant must show that its mark has become a distinctive identifier which consumers associate with the complainant’s goods and/or services. Specific evidence supporting assertions of acquired distinctiveness should be included in the complaint; conclusory allegations of unregistered or common law rights, even if undisputed in the particular UDRP case, would not normally suffice to show secondary meaning or common law trademark rights. See Section 1.3, WIPO Jurisprudential Overview 3.0.
As such, the Panel determines that Complainant has failed to establish registered or common law trademark rights in the AIRSERV.ORG mark for the purposes of Policy ¶ 4(a)(i).
As the Panel finds Complainant failed to satisfy Policy ¶ 4(a)(i) (Identical and/or Confusingly Similar), the Panel declines to analyze Policy ¶ 4(a)(ii) (Rights or Legitimate Interests) and Policy ¶ 4(a)(iii) (Registration and Use in Bad Faith). See Creative Curb v. Edgetec Int’l Pty. Ltd., FA 116765 (Forum Sept. 20, 2002) (finding that because the complainant must prove all three elements under the Policy, the complainant’s failure to prove one of the elements makes further inquiry into the remaining element unnecessary). see also Hugo Daniel Barbaca Bejinha v. Whois Guard Protected, FA 836538 (Forum Dec. 28, 2006) (deciding not to inquire into the respondent’s rights or legitimate interests or its registration and use in bad faith where the complainant could not satisfy the requirements of Policy ¶ 4(a)(i)).
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 <alrserv.org> domain name REMAIN WITH Respondent.
Ho Hyun Nahm, Esq., Panelist
Dated: March 31, 2019
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