RssMint, LLC, DBA Easy Ads v. Steven Elwell / Corinth Computers Ltd
Claim Number: FA1408001576521
Complainant is RssMint, LLC, DBA Easy Ads (“Complainant”), North Carolina, USA. Respondent is Steven Elwell / Corinth Computers Ltd (“Respondent”), United Kingdom.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <easyads.com>, registered with Webfusion Ltd.
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 A. Einhorn appointed as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on August 23, 2014; the National Arbitration Forum received payment on August 23, 2014.
On August 26, 2014, Webfusion Ltd. confirmed by e-mail to the National Arbitration Forum that the <easyads.com> domain name is registered with Webfusion Ltd. and that Respondent is the current registrant of the name. Webfusion Ltd. has verified that Respondent is bound by the Webfusion Ltd. 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 August 27, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 16, 2014 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@easyads.com. Also on August 27, 2014, 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 September 16, 2014.
Respondent states that it received the Complaint from the Forum but was not properly served with a copy by Complainant. Complainant’s Complaint, on the other hand, certifies that a copy of the Complaint was served as prescribed by the Forum’s Supplemental Rules. The Panel need not resolve this issue, as Respondent has not argued that it was prejudiced by its alleged failure to receive a service copy.
On September 23, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed David A. Einhorn 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" 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’s Contentions
Complainant uses the EASY ADS mark to promote advertising on the Internet. Complainant claims the EASY ADS mark is registered with the United States Patent and Trademark Office ("USPTO") (Reg. No. 4,579,332, registered August 5, 2014, filed December 3, 2013). The domain name is identical to the mark. (The Registration Certificate submitted by Complainant shows an alleged first use date of Oct. 29, 2009).
Respondent has no rights or legitimate interests. Respondent is not commonly known by the <easyads.com> domain name and is allegedly known as a business entity called “Corinth Computers, Ltd.” Respondent’s use is not protectable because it features the words “Coming soon”, but for over 11 years there appears to have been no active use of the domain name.
Respondent registered the domain name in bad faith. Respondent’s probably registered the domain name with an intent to sell it because individuals such as Complainant find it to be a suggestive domain name of great value. Respondent has passively held this domain name for a number of years in bad faith. Complainant makes other accusations of “bad faith” not relevant for purposes of this UDRP proceeding.
B. Respondent
Respondent has rights and legitimate interests in this domain name. Respondent argues that the <easyads.com> domain name is a prime example of a purely generic domain name.
Respondent could not have registered or used the domain name in bad faith. The <easyads.com> domain name was registered as part of a proposal to make an “easyads” brand. Over 10,000 GBP have been placed into the development and holding of the domain name for the business, and a partner to the venture bought <easyads.biz> to further build the brand. The site faced several setbacks and when the lead web developer left in 2003, the project failed. However, these facts illustrate that there was no bad faith at registration, and the maintaining of a passive website is a method to avoid offending any Internet users with parked advertising or other such content. Further, Complainant does not even allege to have used any trademark named EASY ADS as far back as the 2002 registration of this <easyads.com> domain name.
The Panel notes that the <easyads.com> domain name was registered on June 11, 2002.
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.
Paragraph 4(a)(i) of the Policy requires Complainant to show that Respondent’s domain name is identical or confusingly similar to Complainant’s mark. This provision necessarily implies that Complainant’s rights predate the registration of Registrant’s domain name. Expert Computers, Inc. v. Name Delegation, FA 787937 (Nat. Arb. Forum Oct. 24, 2006). Respondent registered the disputed domain name on June 11, 2002, which is many years prior to Complainant’s first use of its trademark and many years prior to Complainant’s filing of its trademark application. As Complainant has not shown that its rights predate the registration of Registrant’s domain name, Complainant has not satisfied paragraph 4(a)(i) of the Policy.
Because the Panel has determined that Complainant has not satisfied this requirement of Policy ¶ 4(a)(i), there is no need to determine whether Respondent has rights or legitimate interests in the domain name or whether Respondent registered or used the domain name in bad faith. Nevertheless, it should be noted that since Respondent’s domain registration predates Complainant’s rights to the mark, Respondent could not have registered the disputed domain in bad faith under Policy ¶ 4(a)(iii).
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 <easyads.com> domain name REMAIN WITH Respondent.
David A. Einhorn, Panelist
Dated: October 7, 2014
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