IMPROV WEST ASSOCIATES v. Acimasiz Cocuq
Claim Number: FA0904001257098
Complainant is IMPROV
WEST ASSOCIATES (“Complainant”), represented by Dennis Ardi, of DENNIS ARDI ATTORNEY AT LAW PROFESSIONAL
CORPORATION,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <improvcomedyclubs.com>, registered with Godaddy.com, 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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on April 9, 2009; the National Arbitration Forum received a hard copy of the Complaint on April 9, 2009.
On April 10, 2009, Godaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <improvcomedyclubs.com> domain name is registered with Godaddy.com, Inc. and that Respondent is the current registrant of the name. Godaddy.com, Inc. has verified that Respondent is bound by the Godaddy.com, 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 April 14, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of May 4, 2009 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@improvcomedyclubs.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On May 7, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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 <improvcomedyclubs.com> domain name is confusingly similar to Complainant’s IMPROV COMEDY CLUB mark.
2. Respondent does not have any rights or legitimate interests in the <improvcomedyclubs.com> domain name.
3. Respondent registered and used the <improvcomedyclubs.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, IMPROV WEST ASSOCIATES, uses its IMPROV COMEDY CLUB mark in connection with entertainment in live shows by stand-up comedians, presentation of such live shows, and in franchising and managing such services. Complainant began using the mark in 1963, and has used the mark continuously in commerce since that time.
Respondent registered the <improvcomedyclubs.com> domain name on November 15, 2000.
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. 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.”).
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.
Because Complainant has failed to satisfy the third element of bad faith registration and use, the Panel finds it unnecessary to address the first two elements. See Creative Curb v. Edgetec Int’l Pty. Ltd., FA 116765 (Nat. Arb. 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).
Complainant argues that Respondent has registered and used
the disputed domain name in bad faith in that Respondent solely obtained the
disputed domain name to sell it to Complainant for value or prevent Complainant
from using the disputed domain name.
Noticeably missing from the Complaint, however, is any corroborating or
supporting evidence to verify this claim.
The Complaint must provide more than legal assertions and conclusions of
bad faith registration and use in order to qualify for its desired remedy under
the Policy, and Complainant has failed in this task. Thus, the Panel cannot, and will not, make a
finding of bad faith registration and use on the merits of the case under
Policy ¶ 4(a)(iii).
See Starwood Hotels & Resorts Worldwide, Inc. v. Samjo CellTech.Ltd,
FA 406512 (Nat. Arb. Forum Mar. 9, 2005) (finding that the complainant failed
to establish that respondent registered and used the disputed domain name in
bad faith because mere assertions of bad faith are insufficient for a
complainant to establish Policy ¶ 4(a)(iii)); see also Ming v. Evergreen
Sports, Inc., FA 154140 (Nat. Arb. Forum May 29, 2003) (“Complainant
has not alleged any facts related to Respondent's use of the disputed domain name.
The Complaint merely asserts a legal conclusion. Thus, the Panel has no
knowledge of Respondent's use of the domain name upon which to base a decision
under Policy ¶ 4(a)(ii) and (iii).”).
The Panel finds that Policy ¶ 4(a)(iii) has not been satisfied.
Having failed to establish all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.
Accordingly, it is Ordered that the <improvcomedyclubs.com> domain name REMAIN with Respondent.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: May 12, 2009
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