Toula Amanna and Stargate Catering and Event Productions, LLC v. Todd Weidenbenner / Brett Weidenbenner
Claim Number: FA1606001679105
Complainant is Toula Amanna and Stargate Catering and Event Productions, LLC (“Complainants”), Florida, United States. Respondent is Todd Weidenbenner / Brett Weidenbenner (“Respondent”), Florida, United States.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <toulaamanna.com> and <stargatecatering.com>, registered with 1&1 Internet SE.
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.
Debrett G. Lyons as Panelist.
Complainants submitted a Complaint to the Forum electronically on June 11, 2016; the Forum received payment on June 11, 2016.
On June 14, 2016, 1&1 Internet SE confirmed by e-mail to the Forum that the <toulaamanna.com> and <stargatecatering.com> domain names are registered with 1&1 Internet SE and that Respondent is the current registrant of the names. 1&1 Internet SE has verified that Respondent is bound by the 1&1 Internet SE 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 June 21, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 11, 2016 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@toulaamanna.com, and postmaster@stargatecatering.com. Also on June 21, 2016, 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.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On July 20, 2016, pursuant to Complainants’ request to have the dispute decided by a single-member Panel, the Forum appointed Debrett G. Lyons 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. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of a formal response from Respondent. In the regard Panel notes informal correspondence sent to the Forum by both sides after the Response was due which was taken into account but which had no material influence on the outcome of the Administrative Proceedings for the reasons given below.
Complainants request that the domain names be transferred from Respondent to Complainants.
A. Complainants
Toula Amanna, an individual, (“Amanna”) claims to be the owner of a Florida Corporation by the name of Stargate Catering and Event Productions, LLC (“Stargate”).[i]
Amanna claims ownership of “the Trademarked Company Flashback Diner”.[ii]
Amanna claims that Todd Weidenbenner and Brett Weidenbenner are one and the same person (“Weidenbenner” or “Respondent”).[iii]
Amanna alleges that Respondent was for a period employed by Complainants in the provision of those services.[iv]
Amanna alleges that after termination of that employment Respondent registered the disputed domain names without any authority to use, or right or interest in, either the name TOULA AMANNA or STARGATE CATERING, and later used the names in bad faith by making defamatory remarks about Amanna at the websites resolving from those domain names.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The only factual finding of any relevance to the decision in this case is that the disputed domain name <toulaamanna.com> domain was registered on March 24, 2016 and the <stargatecatering.com> domain was registered on March 19, 2016.
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 a two-fold enquiry – a threshold investigation into whether a complainant has rights in a trademark, followed by an assessment of whether the disputed domain name is identical or confusingly similar to that trademark. The present complaint has not been established against either disputed domain name because Complainants (either together or individually) have not proven relevant trademarks rights.
Paragraph 4(a)(i) of the Policy does not distinguish between registered and unregistered trademark rights. It is well established by decisions under this Policy that a trademark registered with a national authority is evidence of trademark rights. There is no evidence of a trademark registration for either TOULA AMANNA or STARGATE CATERING. Nevertheless, unregistered or so-called “common law” trade mark rights might still be shown by proof of use and reputation with the public. There is no such evidence in relation to the individual name TOULA AMANNA. So far as STARGATE CATERING is concerned, the evidence is limited to uncertified details of an alleged Florida Corporation by the name of Stargate Catering and Event Productions, LLC formed in 2015. There is no evidence of its trading activities, trading name, turnover, reputation, or any of the normal indicia required to prove unregistered trademark rights. The Complainant fails at the threshold issue of trademark rights.
Panel therefore finds that Complainant has failed to satisfy the requirements of paragraph 4(a)(i) of the Policy with respect to both disputed domain names.
No findings required.[v]
No findings required.
Having failed to establish at least one of the three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.
Accordingly, it is Ordered that the <toulaamanna.com> and <stargatecatering.com> domain names REMAIN WITH Respondent.
Debrett G. Lyons, Panelist
Dated: July 30, 2016
[i] On the evidence filed with the Complaint, there is no clear proof of ownership of Stargate by Amanna or of any other association between the Complainants.
[ii] On the evidence there is no clear evidence of a company by that name, nor of ownership of a trademark, FLASHBACK DINER, in the name of Amanna. Uncertified details of an alleged trademark registration have been disregarded since ownership is unproven, provenance of the alleged registration is unproven and the alleged trademark is, in any event, immaterial to the domain names at issue.
[iii] Unsupported by evidence but immaterial to the outcome of the decision.
[iv] Likewise, unsupported by evidence but immaterial to the outcome of the decision.
[v] See, for example, 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)).
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