DECISION

Empire Home Services, LLC v. Carol Bryan a/k/a Empire Home Services

Claim Number: FA0208000117871

PARTIES

Complainant is Empire Home Services, LLC, Lincolnwood, IL (“Complainant”) represented by Stephen A. Cohen, of Marks, Marks and Kaplan, Ltd.  Respondent is Carol Bryan a/k/a Empire Home Services, Tampa, FL (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME 

The domain name at issue is <empirehomeservices.com>, registered with Register.com, Inc.

PANEL

The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.

Sandra Franklin as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on August 6, 2002; the Forum received a hard copy of the Complaint on August 7, 2002.

On August 22, 2002, Register.com, Inc. confirmed by e-mail to the Forum that the domain name <empirehomeservices.com> is registered with Register.com, Inc. and that Respondent is the current registrant of the name.  Register.com, Inc. has verified that Respondent is bound by the Register.com, Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).

On September 5, 2002, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of September 25, 2002 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts, and to postmaster@empirehomeservices.com by e-mail.

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 October 16, 2002, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed Sandra Franklin 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.”  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.

RELIEF SOUGHT

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

PARTIES’ CONTENTIONS

A. Complainant

The <empirehomeservices.com> domain name is identical to the common law EMPIRE and EMPIRE HOME SERVICES trademarks, which Complainant holds rights in.             

Respondent has no rights or legitimate interests in the <empirehomeservices.com> domain name.

Respondent registered and used the <empirehomeservices.com> domain name in bad faith.

B. Respondent

Respondent has failed to submit a Response in this proceeding.

FINDINGS

Complainant claims to have common law trademark rights in the EMPIRE and EMPIRE HOME SERVICES marks.  Complainant contends that “[t]he goods and services with which the marks are used an will in the future be used [are as follows]:  Selling and providing home carpeting, window treatments, replacement windows and siding in the following states:  Illinois, California, Wisconsin, Michigan, Pennsylvania, New Jersey, Massachusetts, New York, Florida, Washington, Maryland, Connecticut, New Hampshire, Georgia and Indiana…, as well as other states not yet determined.”

Complainant sent a cease and desist letter to Respondent via regular mail, certified mail and email on June 6, 2002.  Respondent never replied to Complainant’s communication attempts.

Respondent registered the <empirehomeservices.com> domain name on May 3, 2002. 

DISCUSSION

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.”

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 Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules.

Paragraph 4(a) of the Policy requires that the 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.

Identical and/or Confusingly Similar

In order to have standing it is paramount for Complainant to establish rights in a trademark or service mark that is identical or confusingly similar to the subject domain name.  Complainant alleges that it has common law trademark rights in the EMPIRE and EMPIRE HOME SERVICES marks.  Complainant, however, merely alleges common law rights without providing supportive evidence that is reliable, credible and admissible.  Complainant provides no date of first use, or any evidence demonstrating the use of the mark in commerce.  Thus, Complainant has not sufficiently demonstrated its rights in the EMPIRE or EMPIRE HOME SERVICES marks.  See TotalFinaElf E&P USA, Inc. v. Farnes, NAF 117028 (Nat. Arb. Forum Sept. 16 2002) (finding that in order to bring a claim under the Policy, Complainant must first establish a prima facie case. Complainant’s initial burden is to provide proof of “valid, subsisting rights in a mark that is similar or identical to the domain name in question”); see also Powrachute Inc. v. Buckeye Indus., AF-0076 (e-Resolution, May 30, 2000) (dismissing a Complaint where Complainant failed to contend, provide evidence, or give arguments to the effect that it had either a registered trademark or service mark in POWRACHUTE or any similar name, or that it had a common law trademark in the name. The only evidence provided, that it was incorporated under the name, is insufficient to create a trademark).

Furthermore, since Complainant has failed to establish standing with its unsupportive claim of common law trademark rights, the Panel need not go beyond Policy ¶ 4(a)(i) to determine any other issues.  It is worth noting, however, that Complainant’s Policy ¶ 4(a)(ii) portion of the Complaint is equally insufficient, because Complainant merely restates Policy ¶¶ 4(c)(i) through (iii).  Complainant provides no factual basis for Respondent’s lack of rights or legitimate interests and therefore Complainant makes no relevant argument under the Policy.  See Lush LTD v. Lush Environs, FA 96217 (Nat. Arb. Forum Jan. 13, 2001) (finding that even when Respondent does file a Response, Complainant must allege facts, which if true, would establish that Respondent does not have any rights or legitimate interests in the disputed domain name); see also Creative Curb v. Edgetec Int’l Pty. Ltd., FA 116765 (Nat. Arb. Forum Sept. 20, 2002) (finding that because Complainant must prove all three elements under the Policy, Complainant’s failure to prove one of the elements makes further inquiry into the remaining element unnecessary).

Accordingly, the Panel finds that Complainant has not sufficiently complied with the requirements of Policy ¶ 4(a)(i). 

DECISION

Complainant has failed to comply with the requirements of Policy ¶ 4(a)(i).  Therefore, the Complaint is DENIED and Complainant shall not be administered its requested relief.

The Panel finds that the <empirehomeservices.com> domain name SHALL NOT be transferred. 

Sandra Franklin, Panelist

Dated:  October 22, 2002

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