Float Pod LLC dba floatpod.com v. Derek Cleveland
Claim Number: FA2304002042283
Complainant is Float Pod LLC dba floatpod.com (“Complainant”), represented by Cawthon Brown, Indiana, USA. Respondent is Derek Cleveland (“Respondent”), Indiana, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <floatpod.com>, registered with GoDaddy.com, LLC.
PANEL
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.
Alan L. Limbury, as Panelist.
Complainant submitted a Complaint to Forum electronically on April 28, 2023. Forum received payment on April 28, 2023.
On May 1, 2023, GoDaddy.com, LLC confirmed by e-mail to Forum that the <floatpod.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 May 2, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 22, 2023 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 postmaster@floatpod.com. Also on May 2, 2023, 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 formal response from Respondent, Forum transmitted to the parties a Notification of Respondent Default.
On May 25, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Alan L. Limbury as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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.
A. Complainant
Complainant, Float Pod LLC dba floatpod.com, has rights in the trademarks FLOAT POD (86123660) and FLOATPOD.COM (97908128). Respondent, Derek Cleveland, is misrepresenting ownership, engaging in unauthorized use of Complainant's trademark, and potentially committing fraudulent activities, which indicates that they have no rights or legitimate interests in the domain name <floatpod.com>.
B. Respondent
Respondent failed to submit a formal Response in this proceeding. However, on May 25, 2023, Respondent’s attorney provided an informal response and sought a 30-day extension of time within which to supplement it.
In light of the Panel’s findings below, it is unnecessary to consider Respondent’s informal response and an extension of time is unnecessary.
Complainant has failed to establish all the elements entitling it to relief.
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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
Complainant asserts that it has rights in the United States registered trademarks FLOAT POD (86123660) and FLOATPOD.COM (97908128). It makes no claim to have acquired common law rights in either of those marks.
Complainant has provided no evidence to support its claim to have rights in the mark FLOAT POD. A search by the Panel of the USPTO website reveals that the FLOAT POD mark, Serial No. 86123660, was registered on August 5, 2014 (Reg. No. 4582054) in the name Nick Janicki and remains live. Accordingly, the Panel is not satisfied that Complainant has established that it has rights in the FLOAT POD mark.
As to the mark FLOATPOD.COM (97908128), Complainant provides evidence that an application to register the mark FLOATPOD.COM, Serial No. 97908128, was filed with the USPTO by Complainant on April 26, 2023, two days before the Complaint in this proceeding was filed. The application remains pending.
As noted by the learned panelist in Intellect Design Arena Limited v. Moniker Privacy Services / David Wieland, iEstates.com, LLC, WIPO Case No. D2016-1349 (August 29, 2016): “it is the preponderant view of panels under the Policy that unless such applications have proceeded to grant they do not constitute trademarks in which a complainant has UDRP-relevant rights.” Accordingly, the Panel is not satisfied that Complainant has established that it has rights in the FLOATPOD.COM mark.
Rights or Legitimate Interests/Registration and Use in Bad Faith
Having regard to the Panel’s findings under the first element, it is unnecessary to consider these elements.
Complainant 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 <floatpod.com> domain name REMAIN WITH Respondent.
Alan L. Limbury, Panelist
Dated: May 30, 2023
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