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Silvia Palkovics /McCormick Talent, Inc. v. Tracey Walker (a/k/a Tracey Kinkaide, Tracey McCormick, Linda McCormick, and Linda Thompson,) d/b/a IMO Internet Models Organization; and McCormick Agency Services, Inc., an Indiana Corporation; Travis Allen, individually, and Northwest Vending For the Deaf Corporation d/b/a Northwest for the Deaf Org. [2005] GENDND 539 (29 July 2005)

World Intellectual Property Organization

WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Silvia Palkovics /McCormick Talent, Inc. v. Tracey Walker (a/k/a Tracey Kinkaide, Tracey McCormick, Linda McCormick, and Linda Thompson,) d/b/a IMO Internet Models Organization; and McCormick Agency Services, Inc., an Indiana Corporation; Travis Allen, individually, and Northwest Vending For the Deaf Corporation d/b/a Northwest for the Deaf Org.

Case No. D2005-0486

1. The Parties

The Complainants are Silvia Palkovics/McCormick Talent, Inc., represented by Lutkus Law, United States of America.

The Respondents are, as listed in the original complaint, Tracey Walker (a/k/a Tracey Kinkaide, Tracey McCormick, Linda McCormick, and Linda Thompson) d/b/a IMO Internet Models Organization and McCormick Agency Services, Inc.

After amendment of the Complaint, the Respondents are Tracey Walker (a/k/a Tracey Kinkaide, Tracey McCormick, Linda McCormick, and Linda Thompson,) d/b/a IMO Internet Models Organization (“IMO”); McCormick Agency Services, Inc., an Indiana Corporation; Travis Allen, individually, and Northwest Vending For the Deaf Corporation d/b/a Northwest for the Deaf Org. (“NWFD”); and other unknown interest holders, of United States of America. All are represented by Travis Allen, Highland, Indiana, United States of America.

2. The Domain Names and Registrars

The disputed Domain Names <chicagosweeties.com> and <mccormicktalent.com> are registered with R&K Global Business Services, Inc. d/b/a 000Domains.com.

The Domain Name <spokesmodels.com> is registered with NameScout Corp. d/b/a namescout.com.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 4, 2005. On May 6, 2005, the Center transmitted by email to R&K Global Business Services, Inc. d/b/a 000Domains.com (“000DOM”) and to NameScout Corp.d/b/a namescout.com (“Namescout”) a request for registrar verification in connection with the Domain Names at issue.

On May 21, 2005, 000DOM reported that IMO was the registrant for <mccormicktalent.com>.

On May 21, 2005, 000DOM reported that Travis Allen and NWFD were the Registrants for <chicagosweeties.com>.

On May 13, 2005, Namescout reported that IMO was not the registrant for <spokesmodels.com>. Instead the Registrant was “NWFD.” The Registrar refused to lock the domain name because the current registrant was not the respondent.

The Center notified Complainant that the Complaint was administratively deficient, after which Complainant filed an amended Complaint on May 31, 2005, naming, additionally, NWFD and Travis Allen.

The Center verified that the Complaint, together with the amendment to the Complaint, satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).

In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint on June 3, 2005. In accordance with the Rules, paragraph 5(a), the due date for Response was June 23, 2005. NWFD and Allen filed a response with the Center on June 23, 2005. Numerous emails were also sent by the Respondents to the Center. The Panel has reviewed these emails, but they are not treated as Responses in accordance with paragraph 5 of the Rules, because they do not include the paragraph 5(b)(vii) of the Rules certification of accuracy and good faith basis.

The Center appointed Lawrence K. Nodine as the sole panelist in this matter on July 11, 2005. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.

4. Factual and Procedural Background

The parties are familiar with each other. They have worked together in the business of supplying models for trade conventions, especially those at the McCormick Place Center in Chicago.

The Domain Names at issue are registered by different registrants. Nonetheless, NWFD did not object to the consolidation in a single complaint and has responded as if he was responsible for all three Domain Names. Under these circumstances, the Panel will treat NWFD as the owner of all three Domain Names.  Donvand Limited trading as Gullivers Travel Associates v. Gullivers Travel/Gulliver's Travel Services, Gullivers Travel Agency and Metin Altun/GTA, WIPO Case No. D2004-0741; Dr. Ing.h.c. F. Porsche AG v. theboxster, Inc., 911-cars, Inc., WIPO Case No. D2004-0284 (Relying on Rule 10(h)).

5. Parties’ Contentions

A. Complainant

The Complainants contend that they have established common law trademark rights for the past decade in the three Domain Names at issue namely, <chicagosweeties.com>, <mccormicktalent.com> and <spokesmodels.com>.

Complainants allege that they have used the mark McCormick Talent since June 1994, and that they have used the marks “CHICAGOSWEETIES.COM”, “MCCORMICKTALENT.COM” and “SPOKESMODELS.COM” since at least as early as June 2000.

Complainants contend that the marks that Respondents are using are identical to the marks in which Complainants have rights.

Complainants contend that the Respondents have never had any valid trademark rights in the Domain Names at issue.

Complainants contend that the Respondents’ alleged attempt at using aliases and dummy corporations to assert their interest or use of the trademarks is wholly illegitimate and cannot be ascertained as valid rights in the marks.

Complainants contend that on September 1, 2004, the Respondent, Tracey Walker, after illegally dissolving the McCormick Talent Agency, fraudulently transferred all three Domain Names at issue from McCormick Talent Agency to Respondents’ own control. Complainants state that this dissolution and transfer is under investigation by the Indiana Attorney General and the U.S. Attorney General.

Complainants allege that the Respondents’ main purpose was to become a competitor of Complainants and put Complainants out of business, and that Complainants have lost over 95% of their business as a direct result of Respondents adopting a name so similar to Complainants’ company.

Complainants contend that after the receipt of the original Complaint, Respondents changed the ownership and contact information for all three Domain Names in order to delay these proceedings.

B. Respondent

Respondents Tracey Allen and NWFD answered for all Respondents. In general they denied Complainants’ allegations and asked for proof. Respondents allege, “This is a domain hijacking situation. Silvia has provided -0- proof of ownership at anytime.” Respondents allege that Tracey Walker used <spokesmodel.com> (no “s”) as of 1998 as her personal website and that <spokesmodel.com> (no “s”) then became the database for her modeling agency as of January 2005. Respondents state that they have purchased the <spokesmodels.com> Domain Name at issue through Namescout on May 27, 2002, and that this website is for Respondents’ “spokesmodels.com team and we have too many people who are working hard night and day since we started the team January 3, 2005. We have two full time people and 3000 team members counting on our domains spokesmodels.com and spokesmodel.com for jobs.”

Respondents state that they used the Domain Name <chicagosweeties.com> beginning August 7, 2003, and that there were no owners of this Domain Name prior to that date. Respondents state that since December 2003, the Domain Name <chicagosweeties.com> has only been used to forward information to another site.

Respondents state that on March 30, 2004, Tracey Walker registered the Domain Name <mccormicktalent.com> and that there were no owners of this Domain Name prior to that date.

Respondents state that they do not intend to renew the Domain Name registrations for <chicagosweeties.com> or <mccormicktalent.com> when those Domain Name registrations expire in the near future.

6. Discussion and Findings

Pursuant to the Policy, Complainants are required to prove the presence of each of the following three elements to obtain the relief they have requested: (i) the Domain Names are identical or confusingly similar to a trademark or service mark in which the Complainants have rights; (ii) the Respondents have no rights or legitimate interests in respect of the Domain Names; and (iii) the Domain Names have been registered and are being used in bad faith. Policy, paragraph 4(a).

In its Complaint, quoted above, Complainants dutifully recite the Policy language. However, “The Policy requires the Complainant to prove each of the three elements.” Western Research 3000, Inc. v. NEP Products, Inc., WIPO Case No. D2004-0755 (emphasis in original; citation omitted.) Complainant advances scant evidence to support its conclusionary allegations. As this Panel has noted on several occasions, allegations of legal conclusions have no force or effect under the Policy. A party must plead, and support with evidence, allegations of fact that, if true, allow  the Panel to reach the desired legal conclusion. Wild West Domains, Inc. v. Brynne Heaton, WIPO Case No. D2004-0789, November 23, 2004.

A. Complainant’s Rights

4 (a) (i) The Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights

Although Complainants have alleged common law use of the Domain Names at issue since 1994, Respondents have generally denied these allegations and offered circumstantial evidence calling Complainants’ allegations into question. Complainants have offered no evidence, for example, of their claimed continuous use since 1994, of the name “McCormick Talent”. Moreover, Respondents have denied Complainants’ allegations of prior use of the name “McCormick Talent”. Respondents have also denied Complainants’ first use of <chicagosweeties.com>. Respondents allege that Tracey Walker was the first to adopt this Domain Name. Respondents deny that <spokesmodels.com> can even serve as a trademark since it is commonly used in the industry as a generic term.

Given Respondents’ denials, Complainants’ case fails for want of proof. The Complainants’ contention with regard to their trademark rights is limited to: “Complainant has valid, ongoing common law rights in mccormicktalent.com, spokesmodels.com and chicagosweeties.com”. No evidence of any use of these “marks” has been presented. Because there is failure to prove the first element of the claim, there is no need to address the other issues. However, the Panel notes that the same deficiency exists as to Policy, paragraphs 4(a)(ii) and (iii), that is, Complainants have alleged that Respondents have no legitimate interest in the Domain Names and that they acted in bad faith. Respondents have denied these allegations and Complainants have not offered evidence sufficient to carry their burden.

7. Decision

For all the foregoing reasons, the request for transfer is denied and the Complaint is dismissed.

Lawrence K. Nodine
Sole Panelist

Dated: July 29, 2005