Ascentive, LLC v. jiang lixin
Claim Number: FA1111001413756
Complainant is Ascentive, LLC (“Complainant”), represented by Alexis Arena, Pennsylvania, USA. Respondent is jiang lixin (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <gangangansoku.net>, registered with Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.com.
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 November 1, 2011; the National Arbitration Forum received payment on November 1, 2011.
On November 1, 2011, Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.com confirmed by e-mail to the National Arbitration Forum that the <gangangansoku.net> domain name is registered with Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.com and that Respondent is the current registrant of the name. Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.com has verified that Respondent is bound by the Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.com 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 November 4, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 25, 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@gangangansoku.net. Also on November 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 December 6, 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 <gangangansoku.net> domain name is identical to Complainant’s GANGANGANSOKU mark.
2. Respondent does not have any rights or legitimate interests in the <gangangansoku.net> domain name.
3. Respondent registered and used the <gangangansoku.net> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Ascentive, LLC, provides computer software under its GANGANGANSOKU mark. Complainant began marketing its software in June of 2010. Complainant owns two domain names that reflect Complainant’s GANGANGANSOKU mark: <gangangansoku.com> and <gangangansoku.jp>. Complainant operates in both the United States and Japan. Complainant has applied for a trademark with the Japan Patent Office (“JPO”) for its GANGANGSOKU mark (App. No. 2011-05948 filed August 18, 2011).
Respondent, Jiang Lixin, registered the <gangangansoku.net> domain name on July 5, 2011. The disputed domain name resolves to a website that offers competing software.
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 provides its trademark application for its GANGANGANSOKU mark with the JPO (App. No. 2011-05948 filed August 18, 2011). However, the Panel concludes that a trademark application does not sufficiently establish rights in a mark for the purposes of Policy ¶ 4(a)(i). See Wave Indus., Inc. v. Angler Supply, FA 304784 (Nat. Arb. Forum Sept. 20, 2004) (finding that the complainant’s pending trademark applications did not establish rights because “an application for [a] mark is not per se sufficient to establish rights [in] a trademark for the purposes of the [Policy]”); see also ECG European City Guide v. Woodell, FA 183897 (Nat. Arb. Forum Oct. 14, 2003) (“Complainant’s mere application to the USPTO to register the ECG mark is insufficient to establish rights to the mark.”). Moreover, the Panel fails to find any evidence in the record that would indicate Complainant’s rights in its GANGANGANSOKU mark. Thus, the Panel holds that Complainant has not established Policy ¶ 4(a)(i) rights in its mark.
The Panel finds Complainant has not satisfied Policy ¶ 4(a)(i).
As the Panel finds Complainant failed to satisfy Policy ¶ 4(a)(i), the Panel declines to analyze Policy ¶ 4(a)(ii). See Creative Curb v. Edgetec Int’l Pty. Ltd., FA 116765 (Nat. Arb. Forum Sept. 20, 2002) (finding that because the complainant must prove all three elements under the Policy, the complainant’s failure to prove one of the elements makes further inquiry into the remaining element unnecessary).
Based on the Panel’s finding that Complainant has not satisfied Policy ¶ 4(a)(i), the Panel has declined to analyze Policy ¶ 4(a)(iii). See Hugo Daniel Barbaca Bejinha v. Whois Guard Protected, FA 836538 (Nat. Arb. Forum Dec. 28, 2006) (deciding not to inquire into the respondent’s rights or legitimate interests or its registration and use in bad faith where the complainant could not satisfy the requirements of Policy ¶ 4(a)(i)).
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 <gangangansoku.net> domain name REMAIN WITH Respondent.
Honorable Karl V. Fink (Ret.), Panelist
Dated: December 7, 2011
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