Complainant is Channel Intelligence, Inc. of Celebration, Florida, United States of America, represented internally.
Respondent is Ethan Lacey of Berkeley, California, United States of America.
The disputed domain name <sellcast.com> is registered with GoDaddy.com, Inc.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 25, 2009. On April 27, 2009, the Center transmitted by email to GoDaddy.com, Inc. a request for registrar verification in connection with the disputed domain name. On April 28, 2009, GoDaddy.com, Inc. transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and disclosing additional contact details not present in the Complaint. The Center sent an email communication to Complainant on May 1, 2009, providing the registrant and contact information disclosed by the Registrar and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amendment to the Complaint on May 4, 2009. 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” 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 Respondent of the Complaint, and the proceedings commenced on May 27, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was June 16, 2009, and the Response was filed with the Center on that date.
The Center appointed Richard G. Lyon as the sole panelist in this matter on June 25, 2009. The Panel finds that it was properly constituted and has jurisdiction over this administrative proceeding. The Panel has submitted his Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
Complainant holds a service mark for SELLCAST registered in the United States Patent and Trademark Office for “[o]nline business services, namely, the categorization and tracking of a retailers' product data delivered to online shopping sites, affiliate networks, search engines and online marketplaces.” This mark was registered in July 2008 and claims a first use in commerce in August 2005.
Respondent registered the disputed domain name in October 2006 after purchasing it from a third party.
When the Panel accessed the disputed domain name he found an active website at which an Internet user could purchase various products, mostly clothing, from different retailers. The site has many photographs of available products, a blog, an illustrated list of participating stores, and a “Community” page. A review of the site indicates that it was apparently established in December 2008.1 The Panel found no archives for this web address at the Wayback Machine, “www.archive.org”, and neither party provides any evidence of its use.
The Panel need not look beyond the content of the Complaint in order to decide this case.
The Complaint's allegations in full on clauses (ii) and (iii) of paragraph 4(a) of the Policy are as follows:
“B. The Respondent has no rights or legitimate interests in respect of the domain name[s]; (Policy, para. 4(a)(ii), Rules, para. 3(b)(ix)(2))
Channel Intelligence, Inc., a Delaware corporation (the “Company”), is the owner of U.S. Registered Trademark (No. 3,456,535) and related trademark registrations (together, the “Registered Mark”). The Company uses the Registered Mark in the United States and abroad in conjunction with providing marketing services for manufacturers, retailers and publishers to facilitate commerce transactions. The Company recently discovered the domain name registration of www.sellcast.com (the “Domain Name”), and the business activities currently conducted online through the Domain Name. The Company believes that the Domain Name is used in violation of the Anticybersquatting Consumer Protection Act of 1999, as amended (the “Protection Act”), embodied in the Lanham Act of 1946, as amended (the “Lanham Act”); and that the registrant (the “Registrant”) of such Domain Name is unlawfully trading on the goodwill of the Company by using a trademark that is confusingly similar to the Registered Mark. The use of the Domain Name by the Registrant is clearly intended to, and in fact does, confuse and misdirect customers seeking the website of the Company to the website of the Registrant, while ensuring that customers of the Registrant are not confused. The activities of the Registrant are unlawful and constitute unfair competition, intentional trademark infringement, trad! emark dilution, false designation of origin and cybersquatting under federal and state law.
C. The domain name[s] [was/were] registered and [is/are] being used in bad faith.
(Policy, paras. 4(a)(iii), 4(b); Rules, para. 3(b)(ix)(3))
Channel Intelligence, Inc., a Delaware corporation (the “Company”), is the owner of U.S. Registered Trademark (No. 3,456,535) and related trademark registrations (together, the “Registered Mark”). The Company uses the Registered Mark in the United States and abroad in conjunction with providing marketing services for manufacturers, retailers and publishers to facilitate commerce transactions. The Company recently discovered the domain name registration of www.sellcast.com (the “Domain Name”), and the business activities currently conducted online through the Domain Name. The Company believes that the Domain Name is used in violation of the Anticybersquatting Consumer Protection Act of 1999, as amended (the “Protection Act”), embodied in the Lanham Act of 1946, as amended (the “Lanham Act”); and that the registrant (the “Registrant”) of such Domain Name is unlawfully trading on the goodwill of the Company by using a trademark that is confusingly similar to the Registered Mark. The use of the Domain Name by the Registrant is clearly intended to, and in fact does, confuse and misdirect customers seeking the website of the Company to the website of the Registrant, while ensuring that customers of the Registrant are not confused. The activities of the Registrant are unlawful and constitute unfair competition, intentional trademark infringement, trad! emark dilution, false designation of origin and cybersquatting under federal and state law.”
Complainant submitted no evidence in support of these allegations. That alone is grounds for denying the Complaint. Complainant bears the burden of proof on each Policy element, and “proof” means proof, not unsupported allegations. Moreover Complainant alleges merely its desired conclusions under the Policy. There is not one relevant factual allegation in the Complaint beyond Complainant's identification of its registered service mark. No facts are alleged that, if found by the Panel, would support any of the conclusions Complainant desires. There is no factual basis alleged, much less supported by evidence, that would permit the Panel for example to infer that Respondent registered the disputed domain name to take advantage of whatever goodwill attached to Complainant's mark.
Without proof the Complaint fails under paragraphs 4(a)(ii) and 4(a)(iii) of the Policy, as there is nothing to support a finding of bad faith and nothing to suggest that Respondent's recent use of the disputed domain name is anything other than the legitimate retail site it appears to be. As far as this Policy proceeding is concerned, that is the end of the matter. This Panel has no jurisdiction to make any findings under the United States law that Complainant cites above. Such matters belong in the national courts.
Because the Complaint on its face consists of little more than a recital of Policy, and because the Complaint must be denied for so fundamental a reason as failure to allege and offer proof of facts that if established would justify transfer of the disputed domain name, the Panel finds that “the Complaint was brought in bad faith, . . . in an attempt at Reverse Domain Name Hijacking,” and “was brought primarily to harass the domain-name holder, . . . in bad faith and constitutes an abuse of the administrative proceeding.” Rules, paragraph 15(e); see Toilets.com, Inc. v. Porta-Jon of the Piedmont, WIPO Case No. D2008-1043; Car Advisory Network, Inc. v. Journal Community Publishing Group, Inc., WIPO Case No. D2008-0717; Liquid Nutrition Inc. v. liquidnutrition.com/Vertical Axis Inc., WIPO Case No. D2007-1598.
For all the foregoing reasons, the Complaint is denied.
Richard G. Lyon
Sole Panelist
Dated: June 28, 2009
1 A posting dated December 3, 2008 reads in part: "Hi, I'm Ethan, the founder of Sell Cast, welcome to my site. I hope it becomes your site. It's been a long time coming to get Sell Cast off the ground."