Rock Gaming LLC v. Moniker Privacy Services
Claim Number: FA1409001582200
Complainant is Rock Gaming LLC (“Complainant”), Michigan, USA. Respondent is Moniker Privacy Services (“Respondent”), Florida, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <rockgaming.com>, registered with Moniker Online Services LLC.
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.
Debrett G. Lyons as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on September 28, 2014; the National Arbitration Forum received payment on October 3, 2014.
On October 5, 2014, Moniker Online Services LLC confirmed by e-mail to the National Arbitration Forum that the <rockgaming.com> domain name is registered with Moniker Online Services LLC and that Respondent is the current registrant of the name. Moniker Online Services LLC has verified that Respondent is bound by the Moniker Online Services 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 October 8, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 28, 2014 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@rockgaming.com. Also on October 8, 2014, 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 response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On November 4, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Debrett G. Lyons 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. The Panel has issued 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
Complainant asserts trademark rights in ROCK GAMING and alleges that the disputed domain name is identical to its trademark.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name.
Complainant alleges that Respondent registered and used the disputed domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
It is noted that the disputed domain name was registered on November 18, 2004. Given the decision which follows there are no further relevant factual findings.
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.
Paragraph 4(a)(i) of the Policy requires a two-fold enquiry – a threshold investigation into whether a complainant has rights in a trademark, followed by an assessment of whether the disputed domain name is identical or confusingly similar to that trademark.
The critical question in this case is whether Complainant has trademark rights in ROCK GAMING. It is well established by decisions under this Policy that a trademark registered with a national authority is evidence of trademark rights. There is no evidence of a national trademark registration for ROCK GAMING. However, paragraph 4(a)(i) of the Policy does not distinguish between registered and unregistered trademark rights and in Artistic Pursuit LLC v. calcuttawebdevelopers.com, FA 894477(Nat. Arb. Forum Mar. 8, 2007) it was found that paragraph 4(a)(i) does not require a trademark registration if a complainant can establish common law rights in its mark.
There is no express claim to common law rights. The Complaint merely references various (US) State based company registrations, not all of which even include the words, “Rock Gaming”. The oldest evidence is that of a Delaware company registration is from late 2010. Such certificates cannot stand in the place of proof of acquired rights through use and reputation. The evidence fails completely to prove the existence of common law trademark rights in ROCK GAMING and so the Complaint fails at the first hurdle (see EU Prop. Portfolio Ltd. v. Salvia Corp., FA 873726 (Nat. Arb. Forum Feb. 7, 2007) (“Although it has been held that there is no requisite showing to establish common law rights, common sense dictates that something beyond mere proof of business establishment is necessary.”).
No findings required.
No findings required.
Having failed to establish one of the three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.
Accordingly, it is Ordered that the <rockgaming.com> domain name REMAIN WITH Respondent.
Debrett G. Lyons, Panelist
Dated: November 13, 2014
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