Jason Johnson v. Ramesh Mahadevan
Claim Number: FA1704001727694
Complainant is Jason Johnson (“Complainant”), California, USA. Respondent is Ramesh Mahadevan (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <curvage.com>, registered with NameSilo, 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.
David L. Kreider as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 19, 2017; the Forum received payment on April 19, 2017.
On April 19, 2017, NameSilo, LLC confirmed by e-mail to the Forum that the <curvage.com> domain name is registered with NameSilo, LLC and that Respondent is the current registrant of the name. NameSilo, LLC has verified that Respondent is bound by the NameSilo, 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 April 28, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 18, 2017 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@curvage.com. Also on April 28, 2017, 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.
A timely Response was received and determined to be complete on May 7, 2017.
On May 17, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David L. Kreider 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant alleges common law rights in the mark CURVAGE arising through use of the mark in a web based advertising, dating and social networking business “in consistent operation since 2007”, which is described in the Complaint as “specializing in micro transactions” and “dedicated to the appreciation of curvy women”. The Complaint alleges that the Curvage business was transferred to Complainant, who became the owner, in June of 2012.
“Curvage” is ranked by Alexa as the 62,627th most popular website worldwide, and the 21,826th most popular website in the United States. As evidence of the mark’s “brand awareness and identity”, the Complaint included a screenshot of a reference to the Curvage business in an article appearing in “The Village Voice” in 2011.
The domain name “curvage.org” was registered on September 9, 2009. The Complaint alleges that the domain “curvage.org”, as well as the disputed domain name “curvage.com” both resolved to Complainant’s Curvage business website “for a great number of years”. It appears from an exhibit to the Complaint that the domains “curvage.org” and “curvage.com” shared the same IP [Internet Protocol] address, 72.55.164.138, as at April 1, 2010.
B. Respondent
Respondent alleges, and provides examples from various web searches, that the word “curvage”, while not listed in most dictionaries, is a generic term that is commonly used in the context of Scoliosis, a medical term referring to the degree of sideways curve in the human spine.
Respondent alleges that it was unaware of the Complainant's website http://www.curvage.org, “which seems to serve a niche category of web users”, when it purchased the disputed domain name. Respondent denies any bad faith in the registration or use of the disputed domain name.
Screenshots from “The Wayback Machine” annexed to the Response show that the disputed domain name “curvage.com” had been inactive and was suspended by the Registrar on February 21, 2014”. Respondent alleges that it purchased the disputed domain name directly from the expiring domain inventory of the registrar ‘123 Reg Ltd.’ in January 2017 and that the DNS server for the disputed domain name was changed on February 7, 2017, and has not been changed since.
A WHOIS search by the Panel reflects that the disputed domain name “curvage.com” was first registered on January 9, 2007.
Contrary to Complainant’s allegation that its “Curvage” mark has been in “consistent” use in connection with its business since 2007, an Internet chat post dated March 4, 2012, entitled “The Future of Curvage”, which appears to the Panel to have been posted by the prior owner of the business, recites:
“Its (sic) pretty obvious to everyone that Ive (sic) basically ignored this site for the last year. Truth be told, I lost my interest long before then. I feel Curvage will continue to languish from my lack of attention paid to it.
Ive (sic) got basically two choices:
1. Treat Curvage like a business. This would mean ads and doing things to attract more traffic.
2. Have someone else take it over.
Im (sic) leaning strongly towards the latter. Is there anyone interested?”
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.
Complainant asserts that it has demonstrated common law rights in its CURVAGE mark. Generally, common law trademark rights are established when a mark acquires a secondary meaning within a relevant market through continuous and uninterrupted use in commerce. By providing evidence of the “length of use in a mark; evidence of holding an identical domain name; media recognition; and promotional material/advertising” a complainant may establish rights in a mark. Klabzuba Oil & Gas, Inc. v. LAKHPAT SINGH BHANDARI, FA 1625750 (Forum July 17, 2015).
Here, Complainant asserts that it has “consistently used the mark since 2007”, that is, currently holds an identical domain name and offers evidence that various other sites have referenced “Curvage” as being associated with Complainant’s website business that offers information and pictures relating to “curvy women.”
The Panel finds that Complainant’s own evidence, including the March 4, 2012 chat post by the prior owner of the business referenced above, refutes its allegation that it has “consistently” [i.e., continuously] used the CURVAGE mark in commerce “since 2007”, or that Complainant is otherwise entitled to common law protection in the CURVAGE mark.
The Panel concludes that Complainant has not satisfied Policy ¶ 4(a)(i) because it has failed to establish rights in the mark. The Panel declines to analyze the other two elements of the Policy. See Creative Curb v. Edgetec Int’l Pty. Ltd., FA 116765 (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); see also Hugo Daniel Barbaca Bejinha v. Whois Guard Protected, FA 836538 (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)).
The Panel concludes that Complainant has not satisfied Policy ¶ 4(a)(i) because it has failed to establish rights in the mark. The Panel declines to analyze the other two elements of the Policy.
The Panel concludes that Complainant has not satisfied Policy ¶ 4(a)(i) because it has failed to establish rights in the mark. The Panel declines to analyze the other two elements of the Policy.
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 <curvage.com> domain name REMAIN WITH Respondent.
David L. Kreider, Panelist
Dated: May 17, 2017
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