national arbitration forum

DECISION

RuSport, Inc. and A.J. Allmendinger v. Diverty Prod - Julien Guichard

Claim Number:  FA0410000340490

PARTIES

Complainant is RuSport, Inc. and A.J. Allmendinger (“Complainant”), represented by Glenn J. Dickinson, 1000 Town Center Dr. 6th Floor, Oxnard, CA 93031-9100.  Respondent is Diverty Prod - Julien Guichard (“Respondent”), Le thiot, 61200 Sevigny, France.

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <ajallmendinger.com>, registered with Bookmyname Sas.

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.

John J. Upchurch as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum electronically on October 8, 2004; the National Arbitration Forum received a hard copy of the Complaint on October 12, 2004.

On October 12, 2004, Bookmyname Sas confirmed by e-mail to the National Arbitration Forum that the domain name <ajallmendinger.com> is registered with Bookmyname Sas and that Respondent is the current registrant of the name. Bookmyname Sas has verified that Respondent is bound by the Bookmyname Sas 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 October 14, 2004, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of November 3, 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@ajallmendinger.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 National Arbitration Forum transmitted to the parties a Notification of Respondent Default.

On November 18, 2004, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed John J. Upchurch as Panelist.

Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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 National Arbitration 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. Respondent’s <ajallmendinger.com> domain name is identical to Complainant’s A.J. ALLMENDINGER mark.

2. Respondent does not have any rights or legitimate interests in the <ajallmendinger.com> domain name.

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

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

FINDINGS

Complainant A.J. Allmendinger is a 23 year-old professional race-car driver.  Mr. Allmendinger is recognized as a major contender for international racing success.  Mr. Allmendinger started his professional career racing as early as 2002 and has been in several high-profile racing series since that time.  Complainant RuSport, Inc. is the holder of the legal right to use the A.J. ALLMENDINGER mark for marketing purposes, under a driver agreement between Mr. Allmendinger and RuSport (collectively, “Complainant”). 

Respondent registered the disputed domain name December 31, 2003.  The domain name resolves to a website displaying Complainant’s career profile and pictures in a photo gallery.  In addition the website states “Sorry, this site is temporarily closed while we work on a new and improved version.  We apologize for the inconvenience.  Please come back later.”

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 that 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

Complainant asserts:

The domain name at issue in this action is the legal name of Complainant, A.J. Allmendinger, who is a professional race car driver who races under the name ‘A.J. Allmendinger.’  Complainant RuSport is the holder of the legal right to use the name ‘A.J. Allmendinger’ for marketing purposes, under a driver agreement between Allmendinger and RuSport. 

Allmendinger, age 23, is well known in professional motor sports and is recognized as a major contender for international racing success.  He has been a successful driver in several high-profile racing series.  He started his national professional career in 2002, in the Barber-Dodge Pro series, which conducts races in the United States and Canada.  The Barber-Dodge series is a feeder for the larger Toyota Atlantic series.  In his rookie year, Allmendinger broke numerous longstanding records and easily won the championship.  After a single year in Barber-Dodge, he moved up to the next competitive level and participated in the Toyota Atlantic Series in 2003.  He also won the Toyota Atlantic championship in his rookie year.  Back-to-back rookie year championships are an extraordinary accomplishment and earned him wide recognition and press coverage.  In the 2004 season, he is racing in the Champ Car World Series, in events held in the United States, Mexico, Canada, South Korea, and Australia, and is listed as a top point-scorer among the rookies in that series.

 

However, Complainant has failed to present any evidence to establish Complainant’s rights in the A.J. ALLMENDINGER mark or that the mark is associated specifically with any of Complainant’s goods or services.  Furthermore, Complainant has averred that it has not filed a trademark registration for the A.J. ALLMENDINGER mark.  Therefore, the Panel finds that Complainant has not established rights in Complainant’s name as a mark.  See TotalFinaElf E&P USA, Inc. v. Farnes, FA 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 FRH Freies Rechenzerntrum v. Ingenieurburo FRH, FA 102945 (Nat. Arb. Forum Jan. 18, 2002) (determining that Complainant has not proven by a preponderance of the relevant, admissible, and credible evidence that the domain name in question is identical to a trademark in which Complainant has rights despite Complainant’s mark being the dominant feature of Complainant’s trade name).

The Panel finds that Complainant has not established Policy ¶ 4(a)(i). 

Complainant’s failure to meet its evidentiary burden under Policy ¶ 4(a)(i) makes further inquiry into Policy ¶¶ 4(a)(ii) and (iii) unnecessary.  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); see also VeriSign Inc. v. VeneSign C.A., D2000-0303 (WIPO June 28, 2000) (finding that Respondent’s default does not automatically lead to a ruling for Complainant).

DECISION

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

John J. Upchurch, Panelist

Dated:  December 1, 2004

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