Semira Bayati, M.D., Inc. v. ARTHUR BENJAMIN / COMPREHENSIVE GLOBAL SOLUTIONS CORP
Claim Number: FA1610001699791
Complainant is Semira Bayati, M.D., Inc. (“Complainant”), represented by Arthur R. Petrie, II, California, USA. Respondent is ARTHUR BENJAMIN / COMPREHENSIVE GLOBAL SOLUTIONS CORP (“Respondent”), Florida, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <allaboutdrbayati.com>, registered with GoDaddy.com, LLC.
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 Forum electronically on October 25, 2016; the Forum received payment on October 25, 2016.
On October 26, 2016, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <allaboutdrbayati.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC 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 October 27, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 16, 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@allaboutdrbayati.com. Also on October 27, 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 December 2, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David A. Einhorn 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 any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Policy ¶ 4(a)(i)
Complainant has rights in the DRBAYATI.COM mark. Respondent’s <allaboutdrbayati.com> domain name is confusingly similar to the DRBAYATI.COM mark.
Policy ¶ 4(a)(ii)
Respondent registered the <allaboutdrbayati.com> domain name after attempting to acquire medical information and/or payment from Complainant and being refused and for the purpose of harming Complainant’s reputation as a surgeon.
Policy ¶ 4(a)(iii)
Respondent registered the <allaboutdrbayati.com> domain name after attempting to acquire medical information and/or payment from Complainant and being refused and for the purpose of harming Complainant’s reputation as a surgeon.
Respondent:
Respondent failed to submit a Response in this proceeding. The Panel notes that the <allaboutdrbayati.com> domain name was created on October 11, 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.
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(f), 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 (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.”).
Complainant claims to have rights in the DRBAYATI.COM mark for use with cosmetic and plastic surgery services. The Panel notes that Complainant has neither alleged that it has common law rights in the mark nor purported to own a registration of the mark with a trademark agency. Further, Complainant does not refer to any of its provided evidence to indicate ownership of the mark.
Thus, Complainant has not satisfied ¶ 4(a)(i) of the Policy.
Since the Panel concludes that Complainant has not satisfied Policy ¶ 4(a)(i), the Panel declines to analyze the other two elements of the Policy. See 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)).
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 <allaboutdrbayati.com> domain name REMAIN WITH Respondent.
David A. Einhorn, Panelist
Dated: December 5, 2016
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