DECISION

 

Marios A. Hedary and George A. Hedary v. Nezar Filou / hedarys mediterranean restaurant

Claim Number: FA2405002099850

 

PARTIES

Complainant is Marios A. Hedary and George A. Hedary ("Complainant"), represented by Kimberly P. Stein of Flangas Law Group, Nevada, USA. Respondent is Nezar Filou / hedarys mediterranean restaurant ("Respondent"), Nevada, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <hedaryslasvegas.com>, registered with GoDaddy.com, LLC.

 

PANEL

The undersigned certifies that they have acted independently and impartially and to the best of their knowledge have no known conflict in serving as Panelist in this proceeding.

 

Steven M. Levy, Esq. as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on May 29, 2024; Forum received payment on May 29, 2024.

 

On May 30, 2024, GoDaddy.com, LLC confirmed by e-mail to Forum that the <hedaryslasvegas.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 June 3, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 24, 2024 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@hedaryslasvegas.com. Also on June 3, 2024, 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, Forum transmitted to the parties a Notification of Respondent Default.

 

On June 25, 2024, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Steven M. Levy, Esq. as Panelist.

 

Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

The Hedary family has been operating as a restaurant in the state of Texas since September 1, 1976. The restaurant eventually expanded into Las Vegas, Nevada. As the Hedary name has been in continuous use for restaurant services for many years, it has gained common law trademark rights. In 2013, Complainants successfully applied to the United States Patent and Trademark Office (USPTO) to register the term HEDARY'S. Unfortunately, certain maintenance filings were not made and the registration was cancelled in 2020. In March of 2022 a new trademark application was filed and, on January 30, 2024, this resulted in USPTO Reg. No. 7292763 which is currently in effect.

 

As part of the expansion into Las Vegas, Complainants allowed their brother to utilize the Hedary name for his own restaurant. Unfortunately, the brother ran into some hard times and had to sell his restaurant on September 4, 2013. The Sales Agreement used by the brother contained certain restrictions to the effect that use of the Hedary name will be limited to one location and, in the event that the Purchaser sells the restaurant to a third party, the Hedary name cannot be used by such new owner.

 

Unbeknownst to Complainants, the Purchaser eventually sold the restaurant to Respondent who obtained a business license under the name S.Y.R. Transportation Inc. on September 19, 2022. Respondent has continued to use the Hedary's name without permission and in violation of the above-mentioned restriction in the 2013 Sales Agreement. The <hedaryslasvegas.com> domain name resolves to a website promoting Respondent's restaurant, displaying photos of various dishes, and mentioning awards and recognition that the restaurant has received since 2004. The site also has a page titled "Our Story" which states, in part, "The Filou's family are dedicated to providing an excellent Mediterranean dining experience…" There have been instances of actual confusion occurring with customers and Respondent ignored a cease and desist letter sent on behalf of Complainants.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

The present dispute involves legal, factual, and evidentiary issues that are beyond the scope of the Policy.

 

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted and 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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) ("Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint.").

 

PRELIMINARY ISSUE: DISPUTE OUTSIDE THE SCOPE OF THE UDRP

The Panel has discretion to determine whether or not it has jurisdiction over this dispute. Here, the Panel finds that there exist other legal issues and insufficient evidence for it to properly view the dispute through the very limited lens of the UDRP. See Draw-Tite, Inc. v. Plattsburgh Spring Inc., D2000-0017 (WIPO Mar. 14, 2000) ("This Panel well recognizes that its jurisdiction is limited to providing a remedy in cases of 'the abusive registration of domain names,' or 'Cybersquatting' ...") The centerpiece of Complainant's argument is that Respondent's use of the Hedary's name is without its permission and in violation of its common law and registered trademark rights. It also points to the Sales Agreement entered into between Complainant's brother and the Purchaser who eventually sold the restaurant to Respondent. This raises a number of issues that directly impact the present dispute and there is also much critical evidence that is not here presented. In In Commercial Publishing Co. v. EarthComm, Inc., FA 95013 (Forum July 20, 2000), the panel found that legitimate disputes should be decided by the courts and explained the bases for its finding as follows:

 

The adopted policy establishes a streamlined, inexpensive administrative-dispute resolution procedure intended only for the relatively narrow class of cases of "abusive registrations." Thus, the fact that the policy's administrative dispute-resolution procedure does not extend to cases where a registered domain name is subject to a legitimate dispute is a feature of the policy, not a flaw. The policy relegates all "legitimate disputes" to the courts. Only cases of abusive registrations are intended to be subject to the streamline [sic] administrative dispute-resolution procedure.

 

Complainant does not question that Respondent is, in fact, operating a restaurant and so a prominent issue is whether Respondent is infringing on Complainant's trademark. Closely related to this is the question of what are the scope of Complainant's claimed common law rights? Finally, were the terms of the Sales Agreement communicated between the Purchaser and Respondent and, although it is not a party to such agreement, is Respondent's use of the mark in some way restrained by those terms, perhaps as a condition of transference that runs with the restaurant sold to it by the Purchaser from Complainant's brother? Or could Respondent be said to have actually acquired some rights to use the Hedary name by its purchase of the restaurant from the Purchaser who, itself, had such rights? A court of competent jurisdiction, with its broad range of evidentiary tools (e.g., discovery, witness cross-examination, etc.) is the proper venue to explore these legal and factual issues.

 

For the reasons stated above, the Panel declines to entertain this dispute as being beyond the scope of the Policy and better suited to a court setting.

 

DECISION

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 <hedaryslasvegas.com> domain name REMAIN WITH Respondent.

 

 

 

Steven M. Levy, Esq., Panelist

Dated: June 27, 2024