DECISION

Music Blast v. PC 2000 Professional Cener, Inc. and Padraic Ley

Claim Number:  FA0408000310990

PARTIES

Complainant is Music Blast (“Complainant”), represented by Ronald N. Serota, 2620 Regatta Drive Suite 102, Las Vegas, NV 89128.  Respondent is PC 2000 Professional Cener, Inc. and Padraic Ley (“Respondent”), 3219-H Post Woods Drive N.W., Atlanta, GA 30339.

REGISTRAR AND DISPUTED DOMAIN NAME

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

PANEL

The undersigned certifies that she has acted independently and impartially and that to the best of her knowledge she has no known conflict in serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically August 10, 2004; the Forum received a hard copy of the Complaint August 12, 2004.

On August 12, 2004, Register.com confirmed by e-mail to the Forum that the domain name <musicblast.com> is registered with Register.com and that Respondent is the current registrant of the name. Register.com verified that Respondent is bound by the Register.com registration agreement and thereby has agreed to resolve domain name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").

On August 18, 2004, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 7, 2004, 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@musicblast.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 September 14, 2004, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Carolyn Marks Johnson 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 makes the following assertions:

1. The domain name registered by Respondent, <musicblast.com>, is identical to Complainant’s MUSIC BLAST mark.

2. Respondent has no rights to or legitimate interests in the <musicblast.com> domain name.

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

B.  Respondent failed to submit a Response in this proceeding.

FINDINGS

Complainant, Music Blast, is a franchise business for the sale of Music Blast Troupe franchises and area development franchises, which provide live, interactive performances using state-of-the-art digital instrumentation. 

Complainant was incorporated in Nevada in May 2004 and has been offering franchises for sale since July 2004. 

Complainant initiated a trademark application with the United States Patent and Trademark for the MUSIC BLAST mark (Ser. No. 78/422,558 filed May 20, 2004) and first used the mark in commerce in May 2004. 

Respondent registered the <musicblast.com> domain name April 16, 1998.  Respondent is using the domain name to communicate with fans, sell CDs of Respondent’s personal composition and provides links to a variety of websites.

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 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 Complainant to 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 to and/or Confusingly Similar

Complainant has established by extrinsic evidence in this proceeding that it submitted a pending trademark application to establish its rights under Policy ¶ 4(a)(i).  Complainant’s pending trademark application, without more, does not demonstrate rights in the MUSIC BLAST mark.  The Panel finds that, since Complainant failed to present sufficient evidence of trademark or service mark rights in the MUSIC BLAST mark, Complainant cannot satisfy its burden under the first factor of the Policy.  See Razorbox, Inc. v. Torben Skjodt, FA 150795 (Nat. Arb. Forum May 9, 2003) (finding that Complainant did not establish the requisite trademark or common law rights to grant Complainant the necessary standing for the Panel to find in its favor as Complainant’s pending trademark application did not, in and of itself, demonstrate trademark rights in the mark applied for); see also Amsec Ent. v. McCall, D2001-0083 (WIPO Apr. 3, 2001) (finding that Complainant’s pending trademark applications do not establish any enforceable rights to the mark until a trademark registration is issued).

Further, Complainant failed to show sufficient evidence that it has established common law rights in the MUSIC BLAST mark because Complainant failed to provide evidence that would establish any secondary meaning associated with its goods or services.  See Weatherford Int’l, Inc. v. Wells, FA 153626 (Nat. Arb. Forum May 19, 2003) (“Although Complainant asserts common law rights in the WELLSERV mark, it failed to submit any evidence indicating extensive use or that its claimed mark has achieved secondary source identity . . . [a]lthough Complainant’s WELLSERV product and related services may be well-known among relevant consumers, that is a finding that must be supported by evidence and not self-serving assertions.); see also Molecular Nutrition, Inc. v. Network News and Publ’ns, FA 156715 (Nat. Arb. Forum June 24, 2003) (approving of and applying the principals outlined in prior decisions that recognized “common law” trademark rights as appropriate for protection under the Policy “if the complainant can establish that it has done business using the name in question in a sufficient manner to cause a secondary meaning identifiable to Complainant's goods or services”).

Furthermore, the <musicblast.com> domain name is comprised of generic terms, “music” and “blast,” which may cause the Complainant’s pending trademark application to be denied. 

The Panel finds that Complainant has not met the requirements of Policy ¶ 4(a)(i).  See Zero Int'l Holding v. Beyonet Servs., D2000-0161 (WIPO May 12, 2000) (stating that "[c]ommon words and descriptive terms are legitimately subject to registration as domain names on a 'first-come, first-served' basis"); see also Capt’n Snooze Mgmt. v. Domains 4 Sale, D2000-0488 (WIPO July 10, 2000) (stating that while “Snooze is an integral part of Complainant’s trademark registrations…this does not entitle the Complainant to protection for that word alone”); see also SOCCERPLEX, INC. v. NBA Inc., FA 94361 (Nat. Arb. Forum May 25, 2000) (finding that Complainant failed to show that it should be granted exclusive use of the domain name <soccerzone.com>, as it contains two generic terms and is not exclusively associated with its business).

Since Complainant failed to establish the first element of the Policy, it is unnecessary to address the claims under the remaining two elements.  See 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).

DECISION

Having failed to establish all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.

Accordingly, it is Ordered that the <musicblast.com> domain name REMAIN WITH Respondent.

Hon. Carolyn Marks Johnson, Panelist

Dated: September 28, 2004

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