Melanie Greenstein v. EMT
Agency c/o Shelly Justice
Claim Number: FA1006001329849
PARTIES
Complainant is Melanie Greenstein (“Complainant”), represented by Daniel
T. Gholston, of
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <eventmodelandtalent.com>, registered
with Register.com.
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.
David E. Sorkin as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
electronically on June 14, 2010.
On June 15, 2010, Register.com confirmed by e-mail to the
National Arbitration Forum that the <eventmodelandtalent.com> domain name
is registered with Register.com and that
the Respondent is the current registrant of the name. Register.com
has verified that Respondent is bound by the Register.com
registration agreement and has thereby agreed to resolve domain-name disputes
brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute
Resolution Policy (the “Policy”).
On June 17, 2010, the Forum
served the Complaint and all Annexes, including a Written Notice of the
Complaint, setting a deadline of July 7, 2010 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@eventmodelandtalent.com.
Also on June 17, 2010, the Written Notice of the Complaint, notifying
Respondent of the email 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.
A timely Response was received and determined to be complete on July 7, 2010.
On July 15, 2010, pursuant to Complainant’s
request to have the dispute decided by a single-member Panel, the National
Arbitration Forum appointed David E. Sorkin as Panelist.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
Complainant operates an agency for tradeshow and event staffing and
related services, entitled Event Models and Talent, LLC. Complainant formed this agency in or around
August 2008, and registered the domain name <eventmodelsandtalent.com> in
June 2008. Complainant asserts that she
has a protectable interest in the name and mark EVENT MODELS AND TALENT,
notwithstanding that it has not been registered as a trademark. In support of this assertion, Complainant
states that her website features this mark on every page, that she frequently
attends events and tradeshows to promote her agency and establish the mark
within the industry, that the mark is used in a PowerPoint presentation that
she distributes to potential clients and on annual holiday cards that she
sends, that she has undertaken other efforts to develop her reputation and
goodwill, and that as a result of these efforts, her agency has become “one of
the nation’s largest agencies” of its kind.
Complainant further states that she formerly was employed by
Respondent, and that Respondent subsequently engaged in a “systematic practice
designed to undermine” Complainant and her agency. Complainant alleges that in furtherance of
this scheme, Respondent registered the disputed domain name <eventmodelandtalent.com>, which
is identical to Complainant’s domain name but for the omission of the letter
“s”, in February 2010 using a pseudonym or proxy to conceal Respondent’s
identity. Complainant contends that this
registration represents an instance of “typosquatting,” intended to divert
Complainant’s customers and potential customers to Respondent’s website. Complainant asserts that the disputed domain
name is confusingly similar to a mark in which Complainant has rights; that
Respondent lacks rights or legitimate interests in the domain name; and that
the domain name was registered and is being used in bad faith.
B. Respondent
Respondent disputes many of Complainant’s allegations, including
Complainant’s claim of trademark rights in EVENT MODELS AND TALENT.
FINDINGS
The Panel finds that Complainant has failed
to sustain her burden of proving that the disputed domain name is identical or
confusingly similar to a mark in which Complainant has rights.
DISCUSSION
Paragraph 15(a) of the Rules for Uniform Domain
Name Dispute Resolution Policy (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 the 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 the Respondent
is identical or confusingly similar to a trademark or service mark in which the
Complainant has rights;
(2) the 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 a proceeding brought under the Policy
based upon a claim of common-law rights in an unregistered mark, the
complainant must show that the claimed mark has become a distinctive identifier
associated with the complainant or its goods and services. See,
e.g., Mt. Vernon Mills, Inc. v.
In the Panel’s view, the evidence offered by
Complainant is insufficient to demonstrate the requisite trademark rights,
particularly given the descriptive nature of the claimed mark. The Panel therefore finds that Complainant
has failed to sustain its burden of proof as to the first element set forth in
Paragraph 4(a) of the Policy.
As the Panel’s conclusion on this issue is
dispositive of the present dispute, the Panel declines to address the other
elements set forth in Paragraph 4(a).
DECISION
Having considered the elements required under the ICANN Policy, the
Panel concludes that relief shall be DENIED.
David E. Sorkin, Panelist
Dated: July 28, 2010
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