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Generic Top Level Domain Name (gTLD) Decisions |
Cavalry Investments, LLC v. McCarthy
Consultants
Claim
Number: FA0406000287256
Complainant is Cavalry Investments, LLC (“Complainant”), represented by Gabriel S. Vargo,
4050 E. Cotton Center Blvd., Bldg. 2, Ste. 20, Phoenix, AZ 85040. Respondent is McCarthy Consultants (“Respondent”), 6506 E. Sunny Side Drive,
Scottsdale, 85254.
REGISTRAR
AND DISPUTED DOMAIN NAME
The
domain name at issue is <cavalryinvestments.com>, registered with Network
Solutions, Inc.
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.
Complainant
submitted a Complaint to the National Arbitration Forum (the "Forum")
electronically on June 17, 2004; the Forum
received a hard copy of the
Complaint on June 17, 2004.
On
June 18, 2004, Network Solutions, Inc. confirmed by e-mail to the Forum that
the domain name <cavalryinvestments.com> is registered with
Network Solutions, Inc. and that Respondent is the current registrant of the
name. Network Solutions, Inc. has
verified that Respondent is bound by the
Network Solutions, 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
June 23, 2004, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"),
setting a deadline of
July 13, 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@cavalryinvestments.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
July 16, 2004, 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.
Complainant
requests that the domain name be transferred from Respondent to Complainant.
A. Complainant does not make the following
assertions:
1. Complainant failed to assert that it has
rights in any mark. Moreover,
Complainant failed to assert that Respondent’s <cavalryinvestments.com>
domain name is identical or confusingly similar to a mark that Complainant has
rights in.
2. Complainant asserts that Respondent lacks
rights and legitimate interests in the <cavalryinvestments.com>
domain name, but did not provide any support for the assertion.
3. Complainant failed to assert that
Respondent registered and used the <cavalryinvestments.com> domain
name in bad faith.
B. Respondent failed to submit a Response in
this proceeding.
Complainant,
Cavalry Investments, LLC, hired Respondent to retain the <cavalryinvestments.com>
domain name for Complainant’s use.
Respondent listed itself as the registrant for the domain name, thereby
adversely affecting Complainant’s business.
Complainant has been unable to secure its websites linked to the <cavalryinvestments.com>
domain name through the use of digital certificates.
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.
Procedural
Issues
The record indicates that the relationship
between Complainant and Respondent appears to be contractual in nature.
Contractual disputes
have been found to be outside the scope of the UDRP. See Discover New England v. Avanti Group,
Inc., FA 123886 (Nat. Arb. Forum Nov. 6, 2002) finding the dispute outside
the scope of the UDRP because the dispute centered on the interpretation
of
contractual language and whether or not a breach occurred; see also Thread.com, LLC v. Poploff, D2000-1470
(WIPO Jan. 5, 2001) denying Complainant’s request to transfer the domain name
and stating that the ICANN Policy does
not apply because attempting “to
shoehorn what is essentially a business dispute between former partners into a
proceeding to adjudicate
cybersquatting is, at its core, misguided, if not a
misuse of the Policy”; see also Express Servs., Inc. v. Hall, FA 157309
(Nat. Arb. Forum July 7, 2003) denying Complainant’s request for the appeal of
a previous decision based on the assertion
of a “breach of natural justice”
because the Panel was “not open . . . to examine the merits of ” the appeal of
a previous dispute
that revolved around a contractual issue, which was
determined to be outside the scope of the UDRP. Due to the fact
that the evidence submitted in the record indicates that the dispute is
contractual in nature, this alone would preclude
the transfer of subject domain
name under the UDRP.
Arguendo, even
if there was no contractual dispute and the dispute fell under the UDRP,
Complainant has not established a prima facie case pursuant to
Policy ¶ 4(a). The lack of a response
by Respondent does not ensure a finding for Complainant. See 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.
Complainant has
not asserted rights in a mark pursuant to Policy ¶ 4(a)(i). Complainant has not asserted that
Respondent’s <cavalryinvestments.com> domain name was identical or
confusingly similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i). 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”.
The dispute is
beyond the scope of the UDRP, and even if the dispute was within the scope of
the UDRP, Complainant failed to meet
its burden of proof and the relief
requested is denied.
For all the
foregoing reasons, the Complaint is DENIED.
Sandra Franklin, Panelist
Dated:
July 28, 2004
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