DECISION

 

aSWEEV Co. v. web master / Expired domain caught by auction winner.***Maybe for sale on Dynadot Marketplace***

Claim Number: FA2408002112107

 

PARTIES

Complainant is aSWEEV Co. ("Complainant"), represented by Griffin Barnett of Perkins Coie LLP, District of Columbia, USA. Respondent is web master / Expired domain caught by auction winner.***Maybe for sale on Dynadot Marketplace*** ("Respondent"), Hong Kong.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <asweev.com>, registered with Dynadot Inc.

 

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.

 

Sandra J. Franklin as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on August 21, 2024; Forum received payment on August 21, 2024.

 

On August 22, 2024, Dynadot Inc confirmed by e-mail to Forum that the <asweev.com> domain name is registered with Dynadot Inc and that Respondent is the current registrant of the name. Dynadot Inc has verified that Respondent is bound by the Dynadot Inc 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 23, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 12, 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@asweev.com. Also on August 23, 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 September 13, 2024, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Sandra J. Franklin 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

1.       Respondent's <asweev.com> domain name is confusingly similar to Complainant's ASWEEV mark.

 

2.       Respondent does not have any rights or legitimate interests in the <asweev.com> domain name.

 

3.       Respondent registered and uses the <asweev.com> domain name in bad faith.

 

B. Respondent did not file a Response.

 

FINDINGS

Complainant is in the electric vehicle industry. Complainant filed an Intent-to-Use Trademark application for the ASWEEV mark with the United States Patent and Trademark Office ("USPTO") on May 30, 2024.

 

Respondent registered the <asweev.com> domain name on May 30, 2024, and offers it for sale.

 

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").

 

Identical and/or Confusingly Similar

Complainant argues that it established rights in the ASWEEV mark prior to its Intent-to-Use Trademark application with the USPTO on May 30, 2024. Complainant provides evidence of its corporate filing with the State of Washington on May 29, 2024. Complainant provides screenshots of webpages at <asweev.co> but does not provide any information about when the website was established or about traffic to the website. Complainant does not provide any evidence about advertising expenditures or media attention to demonstrate recognition of the mark in the public.

 

Complainant relies on prior UDRP cases where the complainant was able to establish consumer recognition with evidence. Here, Complainant has provided no such evidence. Complainant states: "Although aSWEEV originally filed on an intent-to-use basis, it is already using its ASWEEV mark in commerce and promoting its offerings under this mark to investors and the general public via the above-referenced website and other marketing efforts."  Complainant gives no evidence to demonstrate its marketing efforts or otherwise back up this statement.  It remains to be seen whether or not Complainant will be able to secure federal Trademark rights based on commercial use.

 

An Intent-to-Use Trademark application can serve as constructive notice. The Panel notes, however, that the possible "constructive use" date in this case is the very same date that the disputed domain name was registered. That fact, along with the lack of corroborating evidence, leads this Panel to find that there was no constructive notice based on the Trademark application in this case.

 

While the Panel may see the opportunistic nature of Respondent's registration of the disputed domain name, it is nonetheless incumbant upon Complainant to make its case and prove rights in the ASWEEV
mark. The Panel notes that Complainant did not even specifically allege common law rights, let alone demonstrate them. The Panel finds that Complainant has not met its burden of proof.

 

The Panel finds that Complainant has not satisfied Policy ¶ 4(a)(i) and therefore the Complaint fails.

 

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 <asweev.com> domain name REMAIN WITH Respondent.

 

 

 

Sandra J. Franklin, Panelist

Dated: September 16, 2024