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Generic Top Level Domain Name (gTLD) Decisions |
Commerce Holdings, Inc. v. Glen A. Sheets
and Tony Sheets
Claim Number: FA0303000150812
PARTIES
Complainant
is Commerce Holdings, Inc., Dallas,
TX (“Complainant”) represented by Scott
L. Harper, of Carstens Yee & Cahoon LLP. Respondent is Glen A. Sheets and Tony Sheets, Prairie Village, KS
(“Respondent”).
REGISTRAR AND DISPUTED DOMAIN NAME
The
domain name at issue is <angrydog.net>,
registered with Register.Com.
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
Irving H. Perluss (Retired) is the Panelist.
PROCEDURAL HISTORY
Complainant
submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically
on March 20, 2003; the Forum received
a hard copy of the Complaint on March 21,
2003.
On
March 21, 2003, Register.Com confirmed by e-mail to the Forum that the domain
name <angrydog.net> is
registered with Register.Com and that the Respondent is the current registrant
of the name. Register.Com has verified
that Respondent is bound by the Register.Com 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
March 26, 2003, a Notification of Complaint and Commencement of Administrative
Proceeding (the “Commencement Notification”), setting
a deadline of April 15,
2003 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@angrydog.net by e-mail.
A
timely Response was received and determined to be complete on April 14, 2003.
On April 21, 2003, pursuant to Complainant’s request to
have the dispute decided by a single-member
Panel, the Forum appointed Judge Irving H.
Perluss (Retired) as Panelist.
RELIEF SOUGHT
Complainant
requests that the domain name be transferred from Respondent to Complainant.
PARTIES’ CONTENTIONS
A.
Complainant
1.
Commerce
Holdings, Inc., is the owner of United States Federal Trademark No. 1,705,123
(first used in commerce on August 31, 1990)
and United States Trademark
Application Serial Nos. 76/357,952 and 76/358,111 (first used in commerce on
August 10, 1990) for the
mark ANGRY DOG.
Complainant also is the registered owner of the Internet domains
<angrydog.com>, <angrydog.biz>, <angrydog.info>,
and
<angrydog.org>.
2.
Respondent
is the owner of the disputed domain name <angrydog.net> registered
on September 28, 2000. The Respondent’s
domain registration contains the term ANGRY DOG, which is identical to the
Complainant’s trademark and Internet domains.
3.
Respondent’s
ownership and possession of the domain <angrydog.net> infringes
upon the trademark rights of the Complainant pursuant to Section 43 of the
Lanham Act, 35 U.S.C. Section 1125, due to the
likelihood of consumers
confusing the trademarks and domain registrations of Complainant with the
domain registration of the Respondent.
Additionally, Complainant is concerned that given the identical nature
of the marks and domain registrations at issue, Respondent’s
continued use and
possession of the domain <angrydog.net> will lead to the dilution
of Complainant’s ANGRY DOG trademarks and the loss of profits associated
therewith.
4.
Complainant
alleges that Respondent should be considered as having no legitimate rights or
interests in the domain name <angrydog.net> on the following
grounds:
a. On
information and belief, Respondent has not and is not presently using the
domain name <angrydog.net> in connection with a bona fide offering
of goods or services.
b. On
information and belief, Respondent is not commonly known by the domain name <angrydog.net>
and has not acquired trademark or service rights in same.
c. On
information and belief, Respondent is not making legitimate noncommercial or
fair use of the <angrydog.net> domain name with no intention of commercial
gain and is misleading and diverting potential consumers and tarnishing the
trademark
and service marks owned and used by the Complainant.
5.
On
information and belief, the Respondent has acquired and registered the domain
name <angrydog.net> for the purpose of selling, renting, or
otherwise transferring the domain name registration to the Complainant, who is
the owner
of the ANGRY DOG trademark and service marks or to a competitor of
Complainant, for valuable consideration in excess of Respondent’s
documented
out-of-pocket expenses directly to the <angrydog.net> domain name.
B.
Respondent
1.
Respondent
does not dispute that the disputed domain name is identical to Complainant’s
marks. He contends, however, that the
trademarks specifically apply to “clothing; namely T-shirts and hats,”
“restaurant services,” and one
rudimentarily drawn logo bearing the words ANGRY
DOG. Respondent has not used the domain
name <angrydog.net> in a manner that would conflict with any of
these trademarks. Since taking ownership
of this domain on September 28, 2000, the domain has been used for personal
purposes.
2.
The domain
is not currently in use, and, as such, cannot possibly cause dilution or
confusion with any of the Complainant’s trademarks.
3.
The domain
name <angrydog.net> is commonly known to Respondent’s friends and
associates as a place to find materials on that site. Additionally, he has used the ANGRY DOG name professionally for
IT consulting services.
4.
Respondent
has made multiple noncommercial uses of the <angrydog.net>
domain. Furthermore, no attempt has
ever been made to mislead or divert potential Dallas area customers of
Complainant.
5.
The words
“Angry” and “Dog” are generic and common and, as such, their simplicity is what
makes this a valuable domain for Respondent’s
purposes.
6.
The
disputed domain name was not registered in bad faith. It was registered because the two words fit well together, were
short, easy to remember, and evoked a strong and easily identifiable
mental
image.
7.
Respondent
has never contacted Commerce Holdings, Inc., or any of its representatives to
ask for any compensation for transferring
the disputed domain name.
FINDINGS AND DISCUSSION
Paragraph 15(a) of the Rules for Uniform Domain Name
Dispute Resolution Policy (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 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 the Respondent is identical or confusingly similar to a
trademark or service mark in which the Complainant
has rights;
(2)
the
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.
There can be no doubt but that the
disputed domain name is identical to Complainant’s marks and the first prong of
the triad of required
proof may be deemed established.
Nevertheless, the Complaint still is
subject to summary disposition.
Complainant has not carried its required burden of proof with respect to
the remaining two elements by establishing that Respondent
has no rights or
legitimate interests in the disputed domain name, and that the disputed domain
name has been registered and is being
used by Respondent in bad faith.
This is because Complainant has couched
its charges with respect to each of these two elements “on information and
belief.” Subject to exceptions not here
pertinent, it is the Panel’s view that an affidavit based on information and belief is entitled to little, if any,
weight for any purpose.[1]
No other evidence, direct or indirect,
has been offered to bolster Complainant’s claim. The charges made by
Complainant, accordingly
are merely conclusions without support.
Having
failed to establish all three elements required under ICANN Policy, the Panel
concludes that the relief sought by Complainant
shall be DENIED.
JUDGE IRVING H. PERLUSS (RETIRED), Panelist
Dated:
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URL: http://www.worldlii.org/int/other/GENDND/2003/443.html