Unity Wear LLC v. Focus Service, Inc c/o Hotmaster Domain
Claim Number: FA0512000610704
Complainant is Unity Wear LLC (“Complainant”), represented by Paulette R. Carey, of Buchman Law Firm, LLP, 510 Thornall St., Suite 200, Edison, NJ 08837. Respondent is Focus Service, Inc c/o Hotmaster Domain (“Respondent”), 115 Broadway Rd, Los Angeles, CA 41057.
The domain name at issue is <unitywear.com>, registered with Enom, Inc.
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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on December 15, 2005; the National Arbitration Forum received a hard copy of the Complaint on December 19, 2005.
On December 16, 2005, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the <unitywear.com> domain name is registered with Enom, Inc. and that Respondent is the current registrant of the name. Enom, Inc. has verified that Respondent is bound by the Enom, 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 December 21, 2005, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 10, 2006 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@unitywear.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On January 12, 2006, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Bruce E. Meyerson 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 <unitywear.com> domain name is identical to Complainant’s UNITY WEAR mark.
2. Respondent does not have any rights or legitimate interests in the <unitywear.com> domain name.
3. Respondent registered and used the <unitywear.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Unity Wear, asserts that it has rights in the UNITY WEAR “tradename.” Complainant filed a trademark registration with the U.S. Patent and Trademark Office on March 8, 2004 (Ser. No. 76/579642).
Respondent, Focus Service Inc. registered the <unitywear.com> domain name February 12, 2004.
Respondent is not a licensee of Complainant.
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. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. 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.”).
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.
The Complaint is sparse and does not specifically claim
rights in a mark; nevertheless, the Panel infers that Complainant is asserting
rights in a “tradename.” Because it has
submitted evidence of filing an application for the UNITY WEAR mark with the
USPTO, the Panel infers that it is asserting rights in the UNITY WEAR
mark. However, Complainant has not
registered its mark. Additionally,
Complainant does not assert common law rights in the UNITY WEAR mark or provide
facts that would support such a finding.
The Panel finds that, absent any other evidence, a pending trademark
registration does not establish rights pursuant to Policy ¶ 4(a)(i). Wave Indus., Inc. v. Angler Supply,
FA 304784 (Nat. Arb. Forum Sept. 20, 2004) (finding that the complainant’s
pending trademark applications did not establish rights because “an application
for [a] mark is not per se sufficient to establish rights [in] a
trademark for the purposes of the [Policy]”); Bar
Code Disc. Warehouse, Inc. v. Barcodes, Inc.,
D2001-0405 (WIPO July 27, 2001) (“[A]n application for registration standing
alone establishes neither rights nor presumptions.”).
The Panel finds that Complainant has not established Policy ¶ 4(a)(i). Because Complainant has failed to fulfill one of the three required parts of the Policy, the Panel will not consider the other elements of the Policy.
Having failed to establish all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.
Bruce E. Meyerson Panelist
Dated: January 24, 2006
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