DECISION

Alstyle Apparel/Active Wear v. John Schwab d/b/a Alstyle de Mexico

Claim Number: FA0307000170616

PARTIES

Complainant is Alstyle Apparel/Active Wear, Anaheim, CA (“Complainant”) represented by Irshad Ahmad of Alstyle Apparel/Active Wear. Respondent is John Schwab d/b/a Alstyle de Mexico, Enenada, B.C., Mexico (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <alstyleapparel.com> registered with Go Daddy Software, 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.

Richard Hill as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on July 21, 2003; the Forum received a hard copy of the Complaint on July 22, 2003.

On July 21, 2003, Go Daddy Software, Inc. confirmed by e-mail to the Forum that the domain name <alstyleapparel.com> is registered with Go Daddy Software, Inc. and that Respondent is the current registrant of the name. Go Daddy Software, Inc. has verified that Respondent is bound by the Go Daddy Software, 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 July 29, 2003, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of July 29, 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@alstyleapparel.com by e-mail.

A timely Response was received and determined to be complete on August 4, 2003.

On August 13, 2003, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill as Panelist.

RELIEF SOUGHT

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

PARTIES’ CONTENTIONS

A. Complainant

The complainant’s contentions are reproduced verbatim:

“Domain (www.alstyleapparel.com) is confusingly similar to the trademark of ALSTYLE APPAREL / ACTIVEWEAR on which the complainant has the rights through international registration since Nov.19, 1996.

“The respondent has no connection with Alstyle Apparel right now. The respondent has nothing to do with ALSTYLE APPAREL / ACTIVEWEAR.

“The Respondent is using this web site [sic] to divert Internet users to website (Deltamex.com) who [sic] is one of the competitors of ALSTYLE APPAREL / ACTIVEWEAR. This bad use of this web site [sic] is hurting ALSTYLE APPAREL / ACTIVEWEAR daily business and it is also very confusing for all existing customers of ALSTYLE APPAREL / ACTIVEWEAR. The respondent has been our customer in the past and apparently has registered this domain name for misuse.”

B. Respondent

The Respondent’s contentions are reproduced verbatim:

“Respondent has known, both professionally and as a personal friend, the owner and president of Alstyle Apparel  (formerly A & G, Inc) for approximately 17 years.  In 1996, he convinced me to go to Mexico on his behalf and oversee the establishment of an assembly plant for t-shirts by a then subcontractor.  I became a consultant for A & G, Inc., and received a monthly salary and expenses from them through December of 2001.  In the course of this tenure I developed a sales department exclusively for sales of t-shirts in Mexico.  We eventually formed a new corporation strictly for sales, of which I was director.

“In 2001, with the full knowledge of Alstyle’s president and without his voicing any concern or reservations, I filed for and obtained the name and corporation of ALSTYLE DE MEXICO, S.A. de C.V. personally; although I had no timetable nor immediate plans for the activation of this corporation.  This made sense, as I had established myself as the exclusive distributor of AAA t-shirts in Mexico, and my relationship seemed secure.  Already having established a website at aaatshirt.com, I decided to also establish one more closely related to the name Alstyle.  Alstyle Apparel / A & G Inc., had always used the website of murina.com, their better known U.S. t-shirt, and seemed content to continue in this vein.  Since I had an established, legal corporation with the name Alstyle,  and was an importer/exporter of casual wear apparel, and anticipated that supplier to continue to be A & G Inc., this domain registration was undertaken solely as a wise business decision to enhance name recognition in Mexico without harm nor damage to our U.S. supplier.  We simply had our website at aaatshirt.com pasted onto this new site, with only AAA products displayed.

“In early 2002, for reasons known only to the owners of Alstyle Apparel / A & G Inc., they chose to traumatically severe our long-standing relationship; and to force us to liquidate and dissolve our present corporation in which they held an ownership interest.  In our attempt to remain alive and active in the sales of activewear to our existing clientele, we were forced by their actions to change our supplier to Delta Apparel.   … They indirectly forced me to immediately activate Alstyle de Mexico, which I did, and which we have actively continued in business to this date. In Mexico we are ALYSTYLE; and well known sellers of apparel and activewear.

“Respondent asserts that in fact he does have ‘rights and legitimate interests’ in respect to the use of this domain name, as he openly sells apparel and casual wear under the legal and legitimate name of Alstyle, in Mexico;

 “Respondent declares that this domain name WAS NOT registered ‘for misuse’, as Complainant claims; nor is it being used ‘in bad faith’ today.  This domain name was registered at a time when Respondent was in fact recognized as the sole distributor of AAA products in Mexico; and regarded as Alstyle by it’s many clients.  It refers people today to a website that has never been developed (deltamex.com), after a representative of Alstyle called me threatening a lawsuit for displaying AAA products on this site.

 “Respondent, having openly and honestly addressed the issues of the Complainant’s charges, does hereby and herein voluntarily consent to that which could have been accomplished with a simple telephone call by the owner and president of Alstyle
Apparel / A & G Inc.

 “Respondent herein agrees to relinquish rights to the domain name alstyleapparel.com; and further instructs Case Coordinator of the National Arbitration Forum to so find, and take necessary steps to accomplish the transfer of domain name to Complainant.”

FINDINGS

The panel will not make any findings of fact, for the reasons explained below.

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.”

In this case, the parties have both asked for the domain name to be transferred to the Complainant.  In accordance with a general legal principle governing arbitrations as well as national court proceedings, this Panel holds that it cannot act nec ultra petita nec infra petita, that is, that it cannot issue a decision that would be either less than requested, nor more than requested by the parties.  Since the requests of the parties in this case are identical, the Panel has no scope to do anything other than to recognize the common request, and it has no mandate to make findings of fact or of compliance (or not) with the Policy.

DECISION

Given the common request of the parties, it is Ordered that the <alstyleapparel.com> domain name be TRANSFERRED from Respondent to Complainant.

Richard Hill, Panelist
Dated: 5 September 2003

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