Alstyle Apparel/Active Wear v. John
Schwab d/b/a Alstyle de Mexico
Claim Number: FA0307000170616
PARTIES
Complainant
is Alstyle Apparel/Active Wear,
Anaheim, CA (“Complainant”) represented by Irshad
Ahmad of Alstyle Apparel/Active Wear. Respondent is John Schwab d/b/a Alstyle de Mexico,
Enenada, B.C., Mexico (“Respondent”).
REGISTRAR AND DISPUTED DOMAIN NAME
The
domain name at issue is <alstyleapparel.com>
registered with Go Daddy Software, Inc.
PANEL
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.
Richard
Hill as Panelist.
PROCEDURAL HISTORY
Complainant
submitted a Complaint to the National Arbitration Forum (the “Forum”)
electronically on July 21, 2003; the Forum received a hard copy of the
Complaint on July 22, 2003.
On
July 21, 2003, Go Daddy Software, Inc. confirmed by e-mail to the Forum that
the domain name <alstyleapparel.com>
is registered with Go Daddy Software, Inc. and that Respondent is the current
registrant of the name. Go Daddy Software, Inc. has verified that Respondent is
bound by the Go Daddy Software, Inc. 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
July 29, 2003, a Notification of Complaint and Commencement of Administrative
Proceeding (the “Commencement Notification”), setting a deadline of July 29,
2003 by which Respondent could file a Response to the Complaint, was
transmitted to Respondent via e-mail, post and fax, to all entities and persons
listed on Respondent’s registration as technical, administrative and billing
contacts, and to postmaster@alstyleapparel.com by e-mail.
A
timely Response was received and determined to be complete on August 4, 2003.
On August 13, 2003, pursuant to Complainant’s request to
have the dispute decided by a single-member
Panel, the Forum appointed Richard Hill
as Panelist.
RELIEF SOUGHT
Complainant
requests that the domain name be transferred from Respondent to Complainant.
PARTIES’
CONTENTIONS
A.
Complainant
The
complainant’s contentions are reproduced verbatim:
“Domain
(www.alstyleapparel.com) is confusingly similar to the trademark of
ALSTYLE APPAREL / ACTIVEWEAR on which the complainant has the rights through
international registration since Nov.19, 1996.
“The
respondent has no connection with Alstyle Apparel right now. The respondent has
nothing to do with ALSTYLE APPAREL / ACTIVEWEAR.
“The
Respondent is using this web site [sic] to divert Internet users to website
(Deltamex.com) who [sic] is one of the competitors
of ALSTYLE APPAREL / ACTIVEWEAR. This bad use of this web site [sic] is hurting
ALSTYLE APPAREL / ACTIVEWEAR daily business and it is also very confusing for
all existing customers of ALSTYLE APPAREL / ACTIVEWEAR. The respondent has been
our customer in the past and apparently has registered this domain name for
misuse.”
B.
Respondent
The
Respondent’s contentions are reproduced verbatim:
“Respondent
has known, both professionally and as a personal friend, the owner and
president of Alstyle Apparel (formerly
A & G, Inc) for approximately 17 years.
In 1996, he convinced me to go to Mexico on his behalf and oversee the
establishment of an assembly plant for t-shirts by a then subcontractor. I became a consultant for A & G, Inc.,
and received a monthly salary and expenses from them through December of
2001. In the course of this tenure I
developed a sales department exclusively for sales of t-shirts in Mexico. We eventually formed a new corporation
strictly for sales, of which I was director.
“In
2001, with the full knowledge of Alstyle’s president and without his voicing
any concern or reservations, I filed for and obtained the name and corporation
of ALSTYLE DE MEXICO, S.A. de C.V. personally; although I had no timetable nor
immediate plans for the activation of this corporation. This made sense, as I had established myself
as the exclusive distributor of AAA t-shirts in Mexico, and my relationship
seemed secure. Already having
established a website at aaatshirt.com, I decided to also establish one more
closely related to the name Alstyle.
Alstyle Apparel / A & G Inc., had always used the website of
murina.com, their better known U.S. t-shirt, and seemed content to continue in
this vein. Since I had an established,
legal corporation with the name Alstyle,
and was an importer/exporter of casual wear apparel, and anticipated
that supplier to continue to be A & G Inc., this domain registration was
undertaken solely as a wise business decision to enhance name recognition in
Mexico without harm nor damage to our U.S. supplier. We simply had our website at aaatshirt.com pasted onto this new
site, with only AAA products displayed.
“In
early 2002, for reasons known only to the owners of Alstyle Apparel / A & G
Inc., they chose to traumatically severe our long-standing relationship; and to
force us to liquidate and dissolve our present corporation in which they held
an ownership interest. In our attempt
to remain alive and active in the sales of activewear to our existing
clientele, we were forced by their actions to change our supplier to Delta Apparel. … They indirectly forced me to immediately
activate Alstyle de Mexico, which I did, and which we have actively continued
in business to this date. In Mexico we are ALYSTYLE; and well known sellers of
apparel and activewear.
“Respondent
asserts that in fact he does have ‘rights and legitimate interests’ in respect
to the use of this domain name, as he openly sells apparel and casual wear
under the legal and legitimate name of Alstyle, in Mexico;
“Respondent declares that this domain name
WAS NOT registered ‘for misuse’, as Complainant claims; nor is it being used
‘in bad faith’ today. This domain name
was registered at a time when Respondent was in fact recognized as the sole
distributor of AAA products in Mexico; and regarded as Alstyle by it’s many
clients. It refers people today to a
website that has never been developed (deltamex.com), after a representative of
Alstyle called me threatening a lawsuit for displaying AAA products on this
site.
“Respondent, having openly and honestly
addressed the issues of the Complainant’s charges, does hereby and herein
voluntarily consent to that which could have been accomplished with a simple
telephone call by the owner and president of Alstyle
Apparel / A & G Inc.
“Respondent herein agrees to relinquish
rights to the domain name alstyleapparel.com; and further instructs Case
Coordinator of the National Arbitration Forum to so find, and take necessary
steps to accomplish the transfer of domain name to Complainant.”
FINDINGS
The panel will not make any findings of
fact, for the reasons explained below.
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.”
In this case, the parties have both asked
for the domain name to be transferred to the Complainant. In accordance with a general legal principle
governing arbitrations as well as national court proceedings, this Panel holds
that it cannot act nec ultra petita nec
infra petita, that is, that it cannot issue a decision that would be either
less than requested, nor more than requested by the parties. Since the requests of the parties in this
case are identical, the Panel has no scope to do anything other than to
recognize the common request, and it has no mandate to make findings of fact or
of compliance (or not) with the Policy.
DECISION
Given the common request of the parties,
it is Ordered that the <alstyleapparel.com> domain name be TRANSFERRED
from Respondent to Complainant.
Richard Hill, Panelist
Dated: 5 September 2003
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