RuSport, Inc. and A.J. Allmendinger v.
Diverty Prod - Julien Guichard
Claim
Number: FA0410000340490
Complainant is RuSport, Inc. and A.J. Allmendinger (“Complainant”),
represented by Glenn J. Dickinson, 1000 Town Center Dr. 6th Floor,
Oxnard, CA 93031-9100. Respondent is Diverty Prod - Julien Guichard (“Respondent”),
Le thiot, 61200 Sevigny, France.
REGISTRAR
AND DISPUTED DOMAIN NAME
The
domain name at issue is <ajallmendinger.com>, registered with Bookmyname
Sas.
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.
John
J. Upchurch as Panelist.
Complainant
submitted a Complaint to the National Arbitration Forum electronically on October
8, 2004; the National Arbitration Forum received a hard copy of the Complaint
on October 12, 2004.
On
October 12, 2004, Bookmyname Sas confirmed by e-mail to the National Arbitration
Forum that the domain name <ajallmendinger.com> is registered with
Bookmyname Sas and that Respondent is the current registrant of the name. Bookmyname
Sas has verified that Respondent is bound by the Bookmyname Sas 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
October 14, 2004, a Notification of Complaint and Commencement of
Administrative Proceeding (the "Commencement Notification"), setting
a deadline of November 3, 2004 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@ajallmendinger.com by
e-mail.
Having
received no Response from Respondent, using the same contact details and
methods as were used for the Commencement Notification, the National
Arbitration Forum transmitted to the parties a Notification of Respondent
Default.
On
November 18, 2004, pursuant to Complainant's request to have the dispute
decided by a single-member Panel, the National Arbitration Forum appointed John
J. Upchurch 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." 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 <ajallmendinger.com>
domain name is identical to Complainant’s A.J. ALLMENDINGER mark.
2. Respondent does not have any rights or
legitimate interests in the <ajallmendinger.com> domain name.
3. Respondent registered and used the <ajallmendinger.com>
domain name in bad faith.
B. Respondent failed to submit a Response in
this proceeding.
Complainant A.J.
Allmendinger is a 23 year-old professional race-car driver. Mr. Allmendinger is recognized as a major
contender for international racing success.
Mr. Allmendinger started his professional career racing as early as 2002
and has been in several high-profile racing series since that time. Complainant RuSport, Inc. is the holder of
the legal right to use the A.J. ALLMENDINGER mark for marketing purposes, under
a driver agreement between Mr. Allmendinger and RuSport (collectively,
“Complainant”).
Respondent
registered the disputed domain name December 31, 2003. The domain name resolves to a website
displaying Complainant’s career profile and pictures in a photo gallery. In addition the website states “Sorry, this
site is temporarily closed while we work on a new and improved version. We apologize for the inconvenience. Please come back later.”
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.
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:
The
domain name at issue in this action is the legal name of Complainant, A.J.
Allmendinger, who is a professional race car driver who races under the name
‘A.J. Allmendinger.’ Complainant
RuSport is the holder of the legal right to use the name ‘A.J. Allmendinger’
for marketing purposes, under a driver agreement between Allmendinger and
RuSport.
Allmendinger,
age 23, is well known in professional motor sports and is recognized as a major
contender for international racing success.
He has been a successful driver in several high-profile racing
series. He started his national
professional career in 2002, in the Barber-Dodge Pro series, which conducts
races in the United States and Canada.
The Barber-Dodge series is a feeder for the larger Toyota Atlantic
series. In his rookie year,
Allmendinger broke numerous longstanding records and easily won the
championship. After a single year in
Barber-Dodge, he moved up to the next competitive level and participated in the
Toyota Atlantic Series in 2003. He also
won the Toyota Atlantic championship in his rookie year. Back-to-back rookie year championships are
an extraordinary accomplishment and earned him wide recognition and press
coverage. In the 2004 season, he is
racing in the Champ Car World Series, in events held in the United States,
Mexico, Canada, South Korea, and Australia, and is listed as a top point-scorer
among the rookies in that series.
However, Complainant
has failed to present any evidence to establish Complainant’s rights in the
A.J. ALLMENDINGER mark or that the mark is associated specifically with any of
Complainant’s goods or services.
Furthermore, Complainant has averred that it has not filed a trademark
registration for the A.J. ALLMENDINGER mark.
Therefore, the Panel finds that Complainant has not established rights
in Complainant’s name as a mark. See
TotalFinaElf E&P USA, Inc. v. Farnes, FA 117028 (Nat. Arb. Forum Sept.
16 2002) (finding that in order to bring a claim under the Policy, Complainant
must first establish a prima facie case. Complainant’s initial burden is
to provide proof of “valid, subsisting rights in a mark that is similar or
identical to the domain name in question”); see also FRH Freies
Rechenzerntrum v. Ingenieurburo FRH, FA 102945 (Nat. Arb. Forum Jan. 18,
2002) (determining that Complainant has not proven by a preponderance of the
relevant, admissible, and credible evidence that the domain name in question is
identical to a trademark in which Complainant has rights despite Complainant’s
mark being the dominant feature of Complainant’s trade name).
The Panel finds
that Complainant has not established Policy ¶ 4(a)(i).
Complainant’s
failure to meet its evidentiary burden under Policy ¶ 4(a)(i) makes further
inquiry into Policy ¶¶ 4(a)(ii) and (iii) unnecessary. See Creative Curb v. Edgetec Int’l Pty.
Ltd., FA 116765 (Nat. Arb. Forum Sept. 20, 2002) (finding that because
Complainant must prove all three elements under the Policy, Complainant’s
failure to prove one of the elements makes further inquiry into the remaining
element unnecessary); see also VeriSign
Inc. v. VeneSign C.A., D2000-0303 (WIPO June 28, 2000) (finding that
Respondent’s default does not automatically lead to a ruling for Complainant).
Having failed to
establish all three elements required under the ICANN Policy, the Panel
concludes that relief shall be DENIED.
John
J. Upchurch, Panelist
Dated: December 1, 2004
Click Here to return
to the main Domain Decisions Page.
Click Here to return to our Home
Page
National Arbitration Forum