Complainant is The Moody Blues c/o PAID, Inc. of Boston, Massachusetts, United States of America.
Respondent is Credit Card Marketing Center of Rutland, Vermont, United States of America and Danbury, Connecticut, United States of America. 2. The Domain Name and Registrar
The disputed domain name is registered with NameSecure L.L.C. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 18, 2011. On February 21, 2011, the Center transmitted by email to NameSecure L.L.C a request for registrar verification in connection with the disputed domain name. On February 22, 2011, NameSecure L.L.C transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details.
The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), 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, and the proceedings commenced on March 3, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was March 23, 2011. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on March 24, 2011.
The Center appointed Frederick M. Abbott as the sole panelist in this matter on March 31, 2011. 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.
By e-mail dated February 24, 2011, the Center notified Complainant and Respondent that according to the record of registration, registration of the disputed domain name was due to expire on March 5, 2011, and that action by one of the parties to pay for renewal of registration was required. By e-mail of February 24, 2011 the Registrar confirmed that the disputed domain name would remain on lock status pending resolution of this administrative proceeding. 4. Factual Background
Complainant has stated that it has “full and complete rights in the registered trademark Moody Blues.” Complainant identifies itself as “The Moody Blues c/o PAID, Inc., Attn. Andy Martel [address]”. Complainant states that “the trademark is used in connection with the musical group The Moody Blues, and acts as a source indicator for music that is written, produced, and performed by The Moody Blues. The trademark is also used in association with merchandise and promotion for The Moody Blues.”
Complainant has not provided any documentation to support an association between PAID, Inc. and any musical group. Complainant has not provided any evidence of registration of the asserted trademark at the United States Patent and Trademark Office (USPTO) or with any other trademark registration authority. Complainant has not provided any evidence regarding use of the asserted trademark in connection with the promotion of goods or services other than the recitation above.
According to the Registrar’s verification, Respondent is registrant of the disputed domain name. The administrative and technical contact is Ben / Benny Fragomeli, with the same address as Respondent. According to the Registrar’s verification, the record of registration of the disputed domain name was created on February 23, 2004, was last updated on February 21, 2011, and is set to expire on March 5, 2011.
There is no evidence on the record of this administrative proceeding that the disputed domain name has been used by Respondent.
The registration agreement in effect between Respondent and NameSecure L.L.C. subjects Respondent to dispute settlement under the Policy. The Policy requires that domain name registrants submit to a mandatory administrative proceeding conducted by an approved dispute resolution service provider, of which the Center is one, regarding allegations of abusive domain name registration and use. (Policy, paragraph 4(a)). 5. Parties’ Contentions A. Complainant
Complainant alleges that it has rights in the registered trademark “Moody Blues”. Complainant alleges that the trademark is used in commerce.
Complainant argues that the disputed domain name is identical to its trademark.
Complainant argues that Respondent has no rights or legitimate interests in the disputed domain name because it has never been used.
Complainant argues that passive holding of the disputed domain name by Respondent constitutes use in bad faith, and interferes with the business of Complainant. Complainant argues this is “economic waste and inefficient use by the Respondent.”
Complainant requests the Panel to direct the Registrar to transfer the disputed domain name to Complainant. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
The Policy is addressed to resolving disputes concerning allegations of abusive domain name registration and use. The Panel will confine itself to making determinations necessary to resolve this administrative proceeding.
It is essential to Policy proceedings that fundamental due process requirements be met. Such requirements include that a respondent have notice of proceedings that may substantially affect its rights. The Policy and the Rules establish procedures intended to ensure that respondents are given adequate notice of proceedings commenced against them, and a reasonable opportunity to respond (see, e.g., Rules, paragraph 2(a)).
The Center notified Respondent of the Complaint and commencement of the proceeding at the physical and email addresses shown in the record of registration of the disputed domain name. Courier delivery records show that the Written Notice was delivered at the physical address of Respondent. The records of the Center also indicate successful transmission of telefax notification to the number provided by Respondent in its record of registration of the disputed domain name. The Panel is satisfied that the Center fulfilled its responsibility to provide notice as prescribed in the Policy and Rules, and that Respondent received adequate notice of these proceedings and a reasonable opportunity to respond.
Paragraph 4(a) of the Policy sets forth three elements that must be established by a complainant to merit a finding that a respondent has engaged in abusive domain name registration and use, and to obtain relief. These elements are that:
(i) respondent’s domain name is identical or confusingly similar to a trademark or service mark in which complainant has rights; and
(ii) respondent has no rights or legitimate interests in respect of the domain name; and
(iii) respondent’s domain name has been registered and is being used in bad faith.
Each of the aforesaid three elements must be proved by a complainant to warrant relief. A. Identical or Confusingly Similar
In order to establish abusive domain name registration and use under the Policy, Complainant must first demonstrate rights in a trademark or service mark.
The Panel takes “administrative notice” of the musical group “The Moody Blues”. Complainant PAID, Inc., has provided no evidence of an association with that musical group.
Complainant has alleged rights in a registered trademark, but has provided no evidence of registration. The Panel conducted a search of the USPTO TESS database for “Moody Blues” (Panel search of April 6, 2011). Although there is one live registration (number 3317518, dated October 23, 2007) on the Principal Register of the USPTO for the term “Moody Blues”, the registered mark is used in connection with “retail clothing boutiques; retail clothing stores”, and there is nothing in that USPTO record of registration to suggest an association with Complainant.
While a panel has discretion to issue an administrative order to a party in order to clarify or seek supplemental factual support for assertions in a pleading, the Complaint filed in this proceeding is devoid of evidentiary support that might establish rights in a trademark. The Panel will not use its discretion to request Complainant to refile what would amount to a new factual basis of its Complaint.
Because Complainant has failed to establish rights in a trademark, it may not succeed in this proceeding. The Panel will not address additional elements under the Policy. 7. Decision
For all the foregoing reasons, the Complaint is denied.
Frederick M. Abbott
Sole Panelist
Dated: April 7, 2011
Full & Egal Universal Law Academy