Mobile Attic, Inc. v. ACC,
Claim Number: FA0805001183172
Complainant is Mobile Attic, Inc. (“Complainant”), represented by Molly
Buck Richard of Richard Law Group, Inc.,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <mobileatticportablestorage.com>, registered with Godaddy.com, Inc.
The undersigned certifies that she has acted independently and impartially and that to the best of her knowledge she has no known conflict in serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically April 30, 2008; the National Arbitration Forum received a hard copy of the Complaint May 1, 2008.
On May 1, 2008, Godaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <mobileatticportablestorage.com> domain name is registered with Godaddy.com, Inc. and that Respondent is the current registrant of the name. Godaddy.com, Inc. verified that Respondent is bound by the Godaddy.com, Inc. registration agreement and thereby has agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On May
2, 2008, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of May
22, 2008,
by which Respondent could file a
response to the Complaint, was transmitted to Respondent via e-mail, post and
fax, to all entities and persons listed on Respondent's registration as
technical, administrative and billing contacts, and to postmaster@mobileatticportablestorage.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On May 29, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. Carolyn Marks Johnson to sit as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum 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." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration 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 makes the following assertions:
1. The domain name that Respondent registered, <mobileatticportablestorage.com>, is confusingly similar to Complainant’s THE MOBILE ATTIC mark.
2. Respondent has no rights to or legitimate interests in the <mobileatticportablestorage.com> domain name.
3. Respondent registered and used the <mobileatticportablestorage.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Mobile Attic, Inc., designs and manufactures a line of portable storage containers under its THE MOBILE ATTIC mark. Complainant also offers storage services and moving supplies under this mark. Complainant registered its THE MOBILE ATTIC mark with the United States Patent and Trademark Office (“USPTO”) on April 29, 2003 (Reg. No. 2,710,674).
Respondent registered the <mobileatticportablestorage.com> domain name June 22, 2007. The disputed domain name currently resolves to a website that states the website is under construction.
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."
Given 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(e), 14(a) and 15(a) of the Rules and will draw such inferences as the Panel 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 (Nat. Arb. 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.”).
Paragraph 4(a) of the Policy requires Complainant to 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.
Complainant provided extrinsic evidence of the registration
of its THE MOBILE ATTIC mark with the USPTO on April 29, 2003. The Panel finds this registration
sufficiently establishes Complainant’s rights in its THE MOBILE ATTIC mark
pursuant to Policy ¶ 4(a)(i). See Men’s Wearhouse, Inc. v. Wick, FA
117861 (Nat. Arb. Forum Sept. 16, 2002) (“Under
Respondent’s <mobileatticportablestorage.com>
domain name fully
incorporates Complainant’s THE MOBILE ATTIC mark with the deletion of the
article “the” and the additions of the descriptive terms “portable storage,” along
with the generic top-level domain (“gTLD”) “.com.” The Panel finds these changes do not
sufficiently distinguish Respondent’s disputed domain name from Complainant’s THE
MOBILE ATTIC mark. Thus, the Panel finds
the disputed domain name is confusingly similar to Complainant’s mark pursuant
to Policy ¶ 4(a)(i). See
The Panel finds that Complainant satisfied Policy ¶ 4(a)(i).
Complainant alleged that Respondent does not have rights to or
legitimate interests in the <mobileatticportablestorage.com>
domain name. Complainant is required to
produce a prima facie case in support
of its allegations and then the burden shifts to Respondent to prove it
possesses rights or legitimate interests in the disputed domain name. The Panel finds that Complainant made a prima facie case. Due to Respondent’s failure to respond to
these proceedings, the Panel may assume Respondent does not possess rights to or
legitimate interests in the disputed domain name. The Panel, however, examines the record to
determine whether Respondent possesses rights or legitimate interests in the
disputed domain name pursuant to Policy ¶ 4(c).
See G.D. Searle v. Martin
Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s
Submission constitutes a prima facie case under the Policy, the burden
effectively shifts to Respondent. Respondent’s failure to respond means that
Respondent has not presented any circumstances that would promote its rights or
legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”); see also Am.
Express Co. v. Fang Suhendro, FA 129120
(Nat. Arb. Forum Dec. 30, 2002) (“[B]ased on Respondent's
failure to respond, it is presumed that Respondent lacks all rights and
legitimate interests in the disputed domain name.”).
Respondent’s disputed domain name resolves to a website that merely states that the website is under construction. The Panel finds Respondent failed to make an active use of the disputed domain name, and thus did not make a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), and did not make a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Broadcom Corp. v. Wirth, FA 102713 (Nat. Arb. Forum Jan. 11, 2002) (finding that the respondent’s use of the disputed domain name to display an “under construction” page did not constitute a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)); see also Hewlett-Packard Co. v. Rayne, FA 101465 (Nat. Arb. Forum Dec. 17, 2001) (finding that the “under construction” page, hosted at the disputed domain name, did not support a claim of right or legitimate interest under Policy ¶ 4(a)(ii)).
The record and WHOIS information
do not indicate that Respondent is commonly known by the <mobileatticportablestorage.com>
domain name. The WHOIS information lists
Respondent as “ACC,
The Panel finds that Complainant satisfied Policy ¶ 4(a)(ii).
Respondent failed to make an active use of the <mobileatticportablestorage.com> domain
name. The Panel finds this evidence supports
findings of bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See DCI
The Panel finds that Complainant satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <mobileatticportablestorage.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Carolyn Marks Johnson, Panelist
Dated: June 10, 2008.
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