State Farm Mutual Automobile Insurance Company v. Chris Kephart / Temping Teachers
Claim Number: FA2005001897174
Complainant is State Farm Mutual Automobile Insurance Company (“Complainant”), represented by R. William Beard, Jr., Texas, USA. Respondent is Chris Kephart / Temping Teachers (“Respondent”), Alabama, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <thestatefarmbowl.com>, registered with Wix.com Ltd..
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.
David A. Einhorn appointed as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 20, 2020; the Forum received payment on May 20, 2020.
On May 21, 2020, Wix.com Ltd. confirmed by e-mail to the Forum that the <thestatefarmbowl.com> domain name is registered with Wix.com Ltd. and that Respondent is the current registrant of the name. Wix.com Ltd. has verified that Respondent is bound by the Wix.com Ltd. 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 May 27, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 16, 2020 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 May 27, 2020, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses was 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 June 17, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David A. Einhorn 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.
On April 17, 2020, in State Farm Automobile Insurance Company v. Chris Kephart /Temping Teachers, FA 1887692 (April 17, 2020), the panel in that case denied relief to this same Complainant in a dispute with the same Respondent regarding the same domain name. The decision of the panel was not without prejudice and the panel did not invite Complainant to re-file this case.
Complainant requests that the domain name be transferred from Respondent to Complainant.
Complainant reiterates the factual and legal contentions presented in State Farm, supra. Complainant also raises additional legal arguments which could have been raised in the earlier filed proceeding, but which were not then raised.
Respondent failed to submit a Response in this proceeding.
The panel finds that Complainant’s plea for relief should be denied as duplicative of the claim in State Farm, supra. Views have been expressed by prior Panels regarding the precise burden facing a complainant filing a duplicative complaint. See Assurant, Inc. v. Tom Baert, FA 1143728 (Forum June 25, 2008) (“Past panels have held that the burden on a party attempting to re-file a claim previously decided under the UDRP is high and that the party must show that there is a development of new, credible, material evidence which was not foreseen at the time of the previous dispute.”); Creo Prods. Inc. v. Website in Dev., D2000-1490 (WIPO Jan. 19, 2001)(“First, the burden of establishing that the Refiled Complainant should be entertained under the Uniform Policy rests on the refiling complainant. Secondly, that burden is high. Thirdly, the grounds which allegedly justify entertaining the Refiled Complaint need to be clearly identified by the refiling complaint.”). The complainant fails to meet such burden since it has failed to offer new evidence impacting the grounds upon which the prior panel denied relief. Here, the only new arguments provided by Complainant could have been raised in the first filed case, and presented no new evidence has come into existence after the filing of the first filed case.
Complainant provides arguments concerning Respondent’s informal communication to the Forum during the original case. However, those arguments do not change this Panel’s decision, as the panel in the prior case acknowledged that communication, but did not rely upon it in rendering its decision.
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."
For the reasons stated above, the threshold principles applicable here are those relating to the re-filing of a complaint in a matter that has previously been resolved by a panel under the Policy. Under those principles, the Complainant has failed to show that any new evidence has arisen subsequently to the filing of the original Complaint material to the issues concerning which the prior Panel resolved the dispute in favor of Respondent. See similarly, Walter Arnstein, Inc. v. TransPacific Software Pvt. Ltd., FA 1392515 July 20, 2011).
Accordingly, the Panel finds that this case shall be dismissed.
Having determined that the Complaint in this proceeding states claims duplicative of those previously asserted in State Farm Mutual Automobile Insurance Company v. Chris Kephart/Temping Teachers FA 1887692 (April 17, 2020), and that Complainant has failed to present new pertinent evidence, the Panel concludes that relief shall be DENIED AND THE CASE DISMISSED.
Accordingly, it is Ordered that the <thestatefarmbowl.com> domain name be RETAINED by Respondent.
David A. Einhorn, Panelist
Dated: June 26, 2020
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