LED Source, LLC v. Creighton Power and Communication
Claim Number: FA1108001401204
Complainant is LED Source, LLC (“Complainant”), represented by Harvey Kauget of Phelps Dunbar LLP, Florida, USA. Respondent is Creighton Power and Communication (“Respondent”), Nebraska, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <omahaledsource.com>, registered with GoDaddy.com, Inc.
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.
Honorable Karl V. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on August 1, 2011; the National Arbitration Forum received payment on August 1, 2011.
On August 2, 2011, GoDaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <omahaledsource.com> domain name is registered with GoDaddy.com, Inc. and that Respondent is the current registrant of the name. GoDaddy.com, Inc. has verified that Respondent is bound by the GoDaddy.com, Inc. 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 August 4, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 24, 2011 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@omahaledsource.com. Also on August 4, 2011, 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.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On August 29, 2011, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Karl V. Fink (Ret.) as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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 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. Respondent’s <omahaledsource.com> domain name is confusingly similar to Complainant’s LED SOURCE mark.
2. Respondent does not have any rights or legitimate interests in the <omahaledsource.com> domain name.
3. Respondent registered and used the <omahaledsource.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, LED Source, LLC, markets and sells LED lighting fixtures and systems under its LED SOURCE mark. Complainant offers its products and services at its website <ledsource.com>. Complainant holds multiple trademark registrations with the United States Patent and Trademark Office (“USPTO”) for its LED SOURCE mark (e.g., Reg. No. 3,713,570 registered November 17, 2009)
Respondent, Creighton Power and Communication, registered the <omahaledsource.com> domain name on February 18, 2011. Complainant does not present any evidence as to where the disputed domain name resolves.
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."
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(e), 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 (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 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.
Complainant claims that it owns rights in its LED SOURCE mark under Policy ¶ 4(a)(i). Complainant provides evidence of its trademark registrations with the USPTO for its LED SOURCE mark (e.g., Reg. No. 3,713,570 registered November 17, 2009). The Panel determines that this evidence is sufficient and that Complainant has adequately demonstrated rights in its LED SOURCE mark for the purposes of Policy ¶ 4(a)(i). See Expedia, Inc. v. Tan, FA 991075 (Nat. Arb. Forum June 29, 2007) (“As the [complainant’s] mark is registered with the USPTO, [the] complainant has met the requirements of Policy ¶ 4(a)(i).”); see also Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding that the complainant had established rights in the PENTIUM, CENTRINO and INTEL INSIDE marks by registering the marks with the USPTO).
Complainant alleges that Respondent’s <omahaledsource.com> domain name is confusingly similar to Complainant’s LED SOURCE mark. The disputed domain name contains Complainant’s entire LED SOURCE mark, absent the space, and simply combines Complainant’s mark with the geographic term “omaha” and the generic top-level domain (“gTLD”) “.com.” The Panel determines that the removal of a space, the addition of a geographic term, and the addition of a gTLD all fail to sufficiently distinguish the disputed domain name from Complainant’s mark. See Am. Int’l Group, Inc. v. Domain Admin. Ltd., FA 1106369 (Nat. Arb. Forum Dec. 31, 2007) (finding that “spaces are impermissible and a generic top-level domain, such as ‘.com,’ ‘.net,’ ‘.biz,’ or ‘.org,’ is required in domain names. Therefore, the panel finds that the disputed domain name [<americangenerallifeinsurance.com>] is confusingly similar to the complainant’s [AMERICAN GENERAL] mark.”); see also Ticketmaster Corp. v. Kumar, FA 744436 (Nat. Arb. Forum Aug. 17, 2006) (finding that the <indiaticketmaster.com> domain name was confusingly similar to the complainant’s TICKETMASTER mark); see also Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (finding that the mere addition of the generic top-level domain “.com” is insufficient to differentiate a disputed domain name from a mark). Therefore, the Panel holds that Respondent’s <omahaledsource.com> domain name is confusingly similar to Complainant’s LED SOURCE mark under Policy ¶ 4(a)(i).
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Policy ¶ 4(a)(ii) requires a complainant to demonstrate a prima facie case that a respondent lacks rights and legitimate interests in a domain name. See Domtar, Inc. v. Theriault., FA 1089426 (Nat. Arb. Forum Jan. 4, 2008) (“It is well established that, once a complainant has made out a prima facie case in support of its allegations, the burden shifts to respondent to show that it does have rights or legitimate interests pursuant to paragraph 4(a)(ii) of the Policy.”). The Panel determines that Complainant has not demonstrated a prima facie case. Complainant has failed to provide any evidence or make any allegations as to how Respondent is using the <omahaledsource.com> domain name. Thus, the Panel declines to transfer the disputed domain name under Policy ¶ 4(a)(ii). See Yao Ming v. Evergreen Sports, Inc., FA 154140 (Nat. Arb. Forum May 29, 2003) (“Complainant has not alleged any facts related to Respondent's use of the disputed domain name. The Complaint merely asserts a legal conclusion. Thus, the Panel has no knowledge of Respondent's use of the domain name upon which to base a decision under Policy ¶ 4(a)(ii) and (iii).”); see also O.C. Seacrets, Inc. v. S. TradeWINs, Inc., FA 328042 (Nat. Arb. Forum Oct. 29, 2004) (“Complainant has provided no evidence as to the use of the <jamaicausa.com> domain name and has merely asserted that Respondent has no rights or legitimate interests, which is not sufficient to support a finding that Respondent lacks rights or legitimate interests.”).
The Panel finds that Policy ¶ 4(a)(ii) has not been established.
As noted above, Complainant has not established how Respondent uses the disputed domain name and simply asserts that Respondent registered and uses the <omahaledsource.com> domain name in bad faith. The Panel concludes that Complainant’s failure to provide evidence of Respondent’s use of the disputed domain name makes it impossible for the Panel to determine that Respondent registered and used the <omahaledsource.com> domain name in bad faith under Policy ¶ 4(a)(iii). See Starwood Hotels & Resorts Worldwide, Inc. v. Samjo CellTech.Ltd, FA 406512 (Nat. Arb. Forum Mar. 9, 2005) (finding that the complainant failed to establish that respondent registered and used the disputed domain name in bad faith because mere assertions of bad faith are insufficient for a complainant to establish Policy ¶ 4(a)(iii)); see also Graman USA Inc. v. Shenzhen Graman Indus. Co., FA 133676 (Nat. Arb. Forum Jan. 16, 2003) (finding that general allegations of bad faith without supporting facts or specific examples do not supply a sufficient basis upon which the panel may conclude that the respondent acted in bad faith).
The Panel finds that Policy ¶ 4(a)(iii) has not been established.
Having failed to establish all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.
Accordingly, it is Ordered that the <omahaledsource.com> domain name REMAIN WITH Respondent.
Honorable Karl V. Fink (Ret.), Panelist
Dated: September 2, 2011
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page