The Complainant is Feda Mohammad Ulfat of Dubai, United Arab Emirates, represented by Johnny R. Gonyeau, United Arab Emirates.
The Respondent is Travis Williams of Brandon, Florida, United States of America (the “US”). 2. The Domain Names and Registrar
The disputed domain names , and are registered with eNom (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 26, 2014. On November 26, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On November 26, 2014, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amended Complaint on December 11, 2014.
The Center verified that the Complaint, together with the amended 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 December 12, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was January 1, 2015. The Respondent did not submit any Response. Accordingly, the Center notified the Respondent’s default on January 6, 2015.
The Center appointed John Swinson as the sole panelist in this matter on January 16, 2015. 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 Background
The Complainant is Feda Mohammad Ulfat of the United Arab Emirates. The Complainant submits that he is the owner of the companies UITLT, Greenable Landscapes and UIC Corp.
The Complainant submits that he owns the following registered service marks for transportation logistics services:
- US Registration No. 4,575,154 for UITLT (registered July 29, 2014 by Ulfat International Corporation (Afghanistan Corporation)); and
- US Registration No. 4,363,980 for UIC GULF GENERAL TRADING LLC (registered July 9, 2013 by Ulfat International Corporation (Afghanistan Corporation)).
The Respondent is Travis Williams of the US. It appears that the Respondent is the CEO and owner of Williams Technical Consulting Services and the subsidiary company TEKHosting. The Respondent did not file a Response, and consequently little additional information is known about the Respondent.
The disputed domain names were registered as follows:
- on September 16, 2009 (The webpage at this domain name currently states “You have reached a domain that is pending ICANN verification.”);
- on April 20, 2013 (The webpage currently states “Account Suspended); and
- on July 22, 2013 (The webpage currently states “Account Suspended”).
At one point in the amended Complaint, reference is made to as a disputed domain name, but no reference is made to this domain name elsewhere in the amended Complaint. The Panel makes no decision in relation to this domain name and does not consider it to be in dispute in these proceedings. 5. Parties’ Contentions A. Complainant
The Complainant’s contentions are as follows. Identical or Confusingly Similar
The Complainant referred the Panel to its US service mark registrations. It also annexed a Web Hosting Contract between “Ulfat International Transit Loading Transportation” and the Respondent dated March 14, 2014. Under that contract, the Respondent agreed to register certain domain names in the Complainant’s name, including the disputed domain names and . The contract states: “All domains shall be registered to Feda Mohammad Ulfat / Mr. Ulfat shall be the sole owner and registrant of the domain.”
The Complaint states:
“The Complainant in this administrative proceeding is Feda Mohammad Ulfat personal owner of the company UITLT, Greenable Landscapes, UIC Corp., which is incorporated in Afghanistan and United Arab Emirates where it has its principal place of businesses.” Rights or Legitimate Interests
The Respondent does not have rights or legitimate interests in the disputed domain names for the following reasons:
- the Respondent is not using the disputed domain names in connection with a bona fide offering of goods or services;
- the Respondent has not been commonly known by the disputed domain names; and
- the Respondent is not making a legitimate or fair use of the disputed domain names.
The Complainant submits that the Respondent registered the disputed domain names in his own name with the intent of “hijacking” the disputed domain names for profit in the future. Registered and Used in Bad Faith
The Complainant submits that the disputed domain names have been registered and are being used in bad faith for the following reasons:
- the Respondent agreed in the Web Hosting Contract and stated in emails that the disputed domain names would be, or were, registered in the Complainant’s name, but they were not;
- the Respondent attempted to discourage changes to hosting or email services and access by security when the Complainant sought information in order to take control of the disputed domain names; and
- the WhoIs information regarding the registrant appears to be blocked. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
To succeed, the Complainant must demonstrate that all of the elements enumerated in paragraph 4(a) of the Policy have been satisfied, namely:
(i) the disputed domain names are identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain names; and
(iii) the disputed domain names have been registered and are being used in bad faith.
The onus of proving these elements remains on the Complainant even though Respondent has not filed a Response. A. Procedural Issues
It is well established that the Respondent’s failure to file a response does not automatically result in a decision in favour of the Complainant. However, the Panel may draw appropriate inferences from the Respondent’s default. B. Identical or Confusingly Similar
Paragraph 4(a)(i) of the Policy provides that the Complainant must establish that the disputed domain names are identical or confusingly similar to a trade mark or service mark in which the Complainant has rights.
The Complainant submits that he has registered service mark rights in UITLT and UIC GULF GENERAL TRADING LLC. The US trademark registrations that were provided by the Complainant to prove this are for fancy device marks, and show that these trade mark registrations are not owned by the Complainant.
The Complainant asserts unregistered trade mark rights in relation to the disputed domain name , and annexed to the Complaint a company profile and flyer. These documents are undated and do not refer to the Complainant. The Complaint provides no details regarding the extent of use of these documents. The Complainant must establish that he has common law or unregistered trade mark rights. In order to establish such rights, a complainant must show that an alleged trade mark has become a distinctive identifier associated with the complainant or its goods or services (i.e. that the trade mark has acquired a “secondary meaning”). In order to establish this, the Complainant could have provided evidence of business activities conducted under the alleged trade mark (e.g. the length and amount of sales under the trade mark, advertising, consumer surveys and media recognition).
Previous Panels have held that “a conclusory allegation of common law or unregistered rights (even if undisputed) would not normally suffice; specific assertions of relevant use of the claimed mark supported by evidence as appropriate would be required” (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”), at paragraph 1.7).
The Complaint has been filed in the Complainant’s personal name, and seeks to have the disputed domain names transferred to the Complainant. The Complainant has not provided sufficient evidence to demonstrate that he has trade mark or service mark rights, whether registered or otherwise. In fact, the evidence provided shows that two companies, Ulfat International Corporation (Afghanistan Corporation) and Ulfat International Transit Loading Transportation (Afghanistan Corporation), have service mark rights in respect of some of the disputed domain names. But these companies are not a party to the Complaint.
The Complainant has not provided any evidence to support his submission that he is the owner of Ulfat International Corporation (Afghanistan Corporation) or Ulfat International Transit Loading Transportation (Afghanistan Corporation). To the extent that it may be relevant, the Panel cannot verify that the Complainant is the owner of, or has the right to use, the registered service marks for UITLT and UIC GULF GENERAL TRADING LLC.
The Complaint annexed an email from the Respondent that stated:
“I am listed as the Technical Contact, and Resident Trust. Zia, registered all of these domain names under his name originally. Because of that he was contacted to make sure that the information was up to date. He was not directly contacted by me. He was contacted on my behalf automatically by ENOM,INC to update domain information.
I want to make this known, Zia does not own this domain. He does not operate it, and has no viable operating trust in any future endeavors in conjunction with domain or any UITLT assets.
The owner is listed as:
Feda M. Ulfat
Ulfat International Company
2445 Hibiscus Bay Lane
Brandon, FL 33511”
The Complaint does not explain anything about this email, so it is unknown who Zia is, what domain name this refers to, or why “Ulfat International Company” of Florida is possibly the owner of the domain name in question.
As stated in 2001 in Ken Done, Ken Done & Associates Pty Limited, and Ken Done Down Under Pty Limited v. Ted Gibson, eResolution Case No. AF-0638,
“… the complaining parties must be meticulous in delineating the relationships among the parties, the relevant trademark ownership interests of each party, and each party’s stake in the remedy to comply with Rules [paragraphs] 3(b)(viii) - (ix). If these elements are not clear, then a Panel cannot adequately evaluate the claim and the integrity of the domain name dispute settlement process is jeopardized.”
As the Complainant has failed to establish the first element of the Policy, the Complaint must fail. The Panel does not need to address the remaining elements of the Policy. 7. Decision
For the foregoing reasons, the Complaint is denied.
John Swinson
Sole Panelist
Date: January 26, 2015
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