START-UP TRADEMARK OPPOSITION POLICY

DECISION

Ravinder Singh v. Manav Kendra Enterprises Inc.

Claim Number: FA0204000110862

PARTIES

Complainant is Ravinder Singh, Skelmersdale, UK (“Complainant”).  Respondent is Manav Kendra Enterprises Inc., Tempe, AZ, USA (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME 

The domain name at issue is <fashion.biz>, registered with R&K Global Business Services, Inc.

PANEL

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.

Judge Harold Kalina (Ret.) as Panelist.

PROCEDURAL HISTORY

Complainant has standing to file a Start-up Trademark Opposition Policy (“STOP”) Complaint, as it timely filed the required Intellectual Property (IP) Claim Form with the Registry Operator, NeuLevel.  As an IP Claimant, Complainant timely noted its intent to file a STOP Complaint against Respondent with the Registry Operator, NeuLevel and with the National Arbitration Forum (the “Forum”).

Complainant submitted a Complaint to the Forum electronically on April 26, 2002; the Forum received a hard copy of the Complaint on May 14, 2002.

On May 20, 2002, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of June 10, 2002 by which Respondent could file a Response to the Complaint, was transmitted to Respondent in compliance with paragraph 2(a) of the Rules for the Start-up Trademark Opposition Policy (the “STOP Rules”).

Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the Forum transmitted to the parties a Notification of Respondent Default.

On July 9, 2002, pursuant to STOP Rule 6(b), the Forum appointed Judge Harold Kalina (Ret.) as the single 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 STOP Rules.  Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the STOP Policy, STOP Rules, the Forum’s STOP Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any Response from Respondent.

RELIEF SOUGHT

Transfer of the domain name from Respondent to Complainant.

PARTIES’ CONTENTIONS

A. Complainant

Complainant asserts that it has a trademark or service mark that is identical to <fashion.biz>.

Complainant asserts that Respondent has no rights or legitimate interests in the <fashion.biz> domain name.

Complainant asserts that Respondent registered <fashion.biz> in bad faith.

B. Respondent

Respondent failed to submit a Response.

FINDINGS

Complainant makes many assertions about its alleged business called FASHION BUSINESS located in the north west of the UK.  However, Complainant fails to provide any proof that it does business under the name FASHION, or FASHION BUSINESS, or that it owns any trademarks or services marks for FASHION.  Complainant states in section 5(c) of its Complaint that it owns a trademark or service mark for “CLTOTHIING,” meanwhile, omitting what country this mark is registered in and its registration number.  Nowhere does the Complaint directly assert that Complainant has a trademark or service mark for FASHION, common law or otherwise.  The Complaint always refers to Complainant’s business as FASHION BUSINESS, not FASHION, and fails to provide any evidence of secondary meaning associating the alleged FASHION mark with Complainant’s goods or services. 

Respondent registered the disputed <fashion.biz> domain name on March 27, 2002.

DISCUSSION

Paragraph 15(a) of the STOP 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.”

In view of Respondent's failure to submit a Response, the Panel shall decide this administrative proceeding on the basis of the Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the STOP Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the STOP Rules.

Paragraph 4(a) of the STOP Policy requires that the Complainant must prove each of the following three elements to obtain an order that a domain name should be transferred:

(1) the domain name is identical to a trademark or service mark in which the Complainant has rights; and

(2) the Respondent has no rights or legitimate interests in respect of the domain name; and

(3) the domain name has been registered or is being used in bad faith.

Due to the common authority of the ICANN policy governing both the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and these STOP proceedings, the Panel will exercise its discretion to rely on relevant UDRP precedent where applicable.

Under the STOP proceedings, a STOP Complaint may only be filed when the domain name in dispute is identical to a trademark or service mark for which a Complainant has registered an Intellectual Property (IP) claim form.  Therefore, every STOP proceeding necessarily involves a disputed domain name that is identical to a trademark or service mark in which a Complainant asserts rights.  The existence of the “.biz” generic top-level domain (gTLD) in the disputed domain name is not a factor for purposes of determining that a disputed domain name is not identical to the mark in which the Complainant asserts rights.

Complainant’s Rights in the Mark

Complainant has failed to provide any proof that it owns a trademark or service mark for FASHION.  Furthermore, Complainant has failed to provide any evidence of common law rights in the FASHION mark.  FASHION is a generic term, therefore Complainant must provide evidence of a substantial secondary meaning associating the FASHION mark to Complainant’s goods or services in order to establish that it has exclusive rights to the term.  Complainant has failed to do that here, and therefore has failed to prove that it has rights in a mark identical to the <fashion.biz> domain name pursuant to STOP Policy ¶ 4(a)(i).  See Cyberimprints.com, Inc. v. Alberga, FA 100608 (Nat. Arb. Forum Dec. 11, 2001) (finding that the Complainant failed to prove trademark rights at common law because it did not prove the CYBERIMPRINTS.COM mark was used to identify the source or sponsorship of goods or services or that there was strong customer identification of the mark as indicating the source of such goods or services).

Respondent has failed to come forward, and as a result there is insufficient evidence for the Panel to proceed in an evaluation of Respondent’s rights in relation to the <fashion.biz> domain name in accordance with the STOP Policy.

DECISION

Having failed to establish a necessary element required under the Start-up Trademark Opposition Policy, the Panel concludes that relief shall be hereby denied.

Accordingly, it is Ordered that the Complaint be dismissed.  There are no further challenges pending against this domain name under the STOP Policy.

                                                                                                 Judge Harold Kalina (Ret.), Panelist

                                                                                                            Dated:  July 18, 2002

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