MNM Investments, LLC; Matthew Moore v. JAROSALW MATULA
Claim Number: FA1503001611023
Complainant is MNM Investments, LLC; Matthew Moore (“Complainant”), Kansas, USA. Respondent is JAROSALW MATULA (“Respondent”), Poland.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bigdogmotorcycles.com>, registered with FastDomain Inc.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 24, 2015; the Forum received payment on March 24, 2015.
On March 24, 2015, FastDomain Inc. confirmed by e-mail to the Forum that the <bigdogmotorcycles.com> domain name is registered with FastDomain Inc. and that Respondent is the current registrant of the name. FastDomain Inc. has verified that Respondent is bound by the FastDomain 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 March 27, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 16, 2015 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@bigdogmotorcycles.com. Also on March 27, 2015, 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 Forum transmitted to the parties a Notification of Respondent Default.
On April 24, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Kenneth L. Port as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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 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
In a brief Complaint, Complainant apparently contends that the disputed domain name and Complainant’s registered trademark are confusingly similar, that the Respondent has no rights or legitimate interests in or to the disputed domain name and that the Respondent has used and registered the disputed domain name in bad faith. Complainant supplies no evidence to support any of its assertions.
B. Respondent
Respondent failed to submit a Response in this proceeding. Respondent registered the disputed domain name on May 24, 1996.
As there is no evidence in the record to support the Complainant’s contentions, the Panel finds it to be unreasonable to accept the Complainant’s limited but undisputed assertions. As such, the Complainant’s request to transfer the disputed domain name is denied.
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.
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.”).
The Complainant adequately establishes through attached Annexes that Complainant is an assignee of the trademark registration for BIG DOG MOTORCYCLES. There no evidence in the record to support the claim that Complainant is the current assignee and holder of the BIG DOG MOTORCYLES trademark.
Complainant’s Complaint requires this Panel to make too many assumptions. Complainant assumes that because it was once the assignee of the trademark it is the current holder of the registration. As the assumed current holder of the registration, Complainant assumes that any domain name registration by any other party for any reason is in bad faith and Complainant assumes that it need not support this claim with actual evidence. Complainant further assumes that the mere existence of a prior trademark registration assignment agreement is adequate to prove a likelihood of confusion, a lack of rights in or to the disputed domain name by the domain name registrant and this all adds up to bad faith use and registration.
Although this Panel sees that Complainant was, at least, once the appropriate assignee of the trademark registration at issue, the record is devoid of any other evidence to support these other allegations. Further, there is no evidence in the record to indicate why the Complainant or its successors in interest delayed nine years before bringing this claim.
As the disputed domain name is identical to the registered trademark at issue, the Panel agrees with Complainant, however, that the domain name is confusingly similar to the registered trademark.
Rights or Legitimate Interests
As the Respondent has failed to file a Response in this matter, the Panel shall decide this matter based on the reasonable allegations made by the Complainant; however, the Complainant has not been reasonable in its allegations of a lack of rights or legitimate interests in the domain name. Complainant merely alleges this fact and provides no evidence to support this claim.
As such, the Panel finds that Complainant’s allegations regarding a lack of rights or legitimate interests to be unreasonable.
The Complainant also makes allegations that, if proven, would amount to bad faith use and registration on part of the Respondent. Using someone’s registered trademark as a domain name to post inappropriate material through “salacious links” (Complaint at 3), if supported by the record, would usually amount to evidence of bad faith use and registration of the domain name. As the record is devoid of such evidence, the Panel has no choice but to deny this claim.
Having not established all three elements required under the ICANN Policy, the Panel concludes that relief shall be denied.
Accordingly, it is Ordered that the <bigdogmotorcycles.com> domain name remain with Respondent.
Kenneth L. Port, Panelist
Dated: April 30, 2015
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