Complainant is Brent Redmond Transportation, Inc., of Hollister, California, United States of America, represented by the law firm Fenton Keller, United States of America.
Respondent is SSI Express, of Redlands, California, United States of America.
The disputed domain name <brentredmondtransportation.com> is registered with GoDaddy.com, Inc.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 14, 2008. On November 17, 2008, the Center transmitted by email to GoDaddy.com, Inc. a request for registrar verification in connection with the disputed domain name. On November 17, 2008, GoDaddy.com, Inc. transmitted by email to the Center its verification response confirming that 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, Complainant filed an amendment to the Complaint on November 22, 2008. 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 November 26, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was December 16, 2008. Respondent did not submit any response. Accordingly the Center notified Respondent's default on December 17, 2008.
The Center appointed Richard G. Lyon as the sole panelist in this matter on December 23, 2008. The Panel finds that it was properly constituted and has jurisdiction over this proceeding.1 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.
The Panel finds the following facts to have been established by the evidence. Additional factual matters alleged by Complainant are set forth in Section 5-A below.
Complainant has operated a trucking business under the name “Brent Redmond Transportation, Inc.” in the state of California, United States of America, since 1998. One of Complainant's owners is an individual named Brent Redmond. Complainant has registered two domain names incorporating the name “Brent Redmond”: <brentredmond.com> in 1998 and <brentredmondtransportationinc.com> in June 2008. Complainant does not hold any registered trademark rights in the name “Brent Redmond”.
Respondent registered the disputed domain name in April 2008. When the Panel entered the disputed domain name in his browser the only text on the page to which the disputed domain name resolved was “This website is temporarily unavailable, please try again later.”
Complainants' counsel sent Respondent a cease-and-desist letter on June 17, 2008, requesting, among other things, that Respondent transfer the disputed domain name to Complainant. Respondent and Complainant's counsel exchanged emails later in June 2008. Complainant's counsel stated that Respondent's registration of the disputed domain name was a violation of law and again demanded a transfer. Respondent declined to transfer the disputed domain name, stating that Complainant was “welcome to purchase it.”
Complainant's contentions include several factual allegations for which Complainant provides no evidentiary support:
- Respondent was formed as a California corporation in May 2008.
- Respondent operates a trucking service business in the state of California, United States of America.
- Respondent redirected traffic intended for the disputed domain name to Respondent's website at <www.ssiexpress.com>.
- No individuals associated with Respondent have ever been known as “Brent Redmond.”
- Complainant has spent significant time and money to develop goodwill in its refrigerated trucking business.
Based upon these factual allegations, Complainant contends as follows:
Complainant has common law trademark rights in its corporate name by virtue of its use of that name for a trucking business since 1998. The disputed domain name is identical to this mark.
Respondent has never been known by the disputed domain name and has never been authorized to use Complainant's mark. The only use to which Respondent put the disputed domain name, diverting Internet users to Respondent's own website, is not legitimate or bona fide under the Policy.
Respondent, which is involved in the same business as Complainant, was clearly aware of Complainant's trademark rights and business when it registered the disputed domain name. Respondent's doing so to divert traffic from Complainant to Respondent is a classic example of bad faith under the Policy. Respondent's final email, quoted above, is an offer to sell the disputed domain name to Complainant and further evidence of registration and use in bad faith.
Respondent did not reply to Complainant's contentions.
The case pleaded by Complainant might satisfy the three parts of paragraph 4(a) of the Policy required to support a transfer of the disputed domain name. Indeed the facts pleaded in the Complaint, if true, make out a garden-variety case of cybersquatting: a newly-formed company registers a domain name incorporating a competitor's mark and re-directs Internet users seeking Complainant to the competitor's website. Allegations alone, however, are not sufficient; “The Policy requires the Complainant to prove each of the three [Policy] elements”, Western Research 3000, Inc. v. NEP Products, Inc., WIPO Case No. D2004-0755 (emphasis in original). This requirement is grounded in the Rules and well established in nine years' precedent in Policy proceedings; see Rules, paragraphs 3(b)(xv) and 10(d)(referring to “evidence”), and WIPO Overview of WIPO Panel Views on Selected UDRP Questions (“WIPO Overview”), paragraph 4.6, consensus view. Unlike in civil litigation in the United States of America, failure to file a response in a Policy proceeding does not constitute an admission of any matter pleaded in the Complaint or result in the Policy equivalent of a default judgment, and a default does not require the Panel to accept as true any matter pleaded but not proven. Ibid; see also Stanworth Development Limited v. E Net Marketing Ltd., WIPO Case No. D2007-1228.2 These principles apply even when it appears to the panel that more likely than not the complainant's unsupported allegations are true, see, e.g. Kellwood Company v. Onesies Corporation, WIPO Case No. D2008-1172.
The only evidence that Respondent has submitted are two annexes to the Complaint (a printout of the registrar's WhoIs data base showing that Respondent registered the disputed domain name, and a copy of the UDRP) and two additional annexes submitted with the amendment to the Complaint (the cease-and-desist letter and email correspondence referred to in the preceding section). Complainant's owner Mr. Redmond has attested to the accuracy of the facts pleaded in the Complaint, see Rules, paragraph 3(b)(xiv). The Panel will accept that certification (as opposed to a certification from counsel without firsthand knowledge) as to the nature of Complainant's business and its use of Mr. Redmond's name as a service identifier. The email correspondence accompanying the Complaint indicates that Respondent was aware of Mr. Redmond and the phrase Brent Redmond Transportation. Those facts might allow the Panel to infer that Complainant has common law trademark rights it asserts, though ordinarily more is required.3 Even allowing that point, which might meet the elements of paragraph 4(a)(i) of the Policy, there is nothing in the record to support the allegation that Respondent is a competitor of Complainant, and as to that the Policy and this Panel require more than Mr. Redmond's unsworn statement. Any number of publicly available data could have accompanied the Complaint to make that point. In the absence of more relevant information on Respondent, Complainant has not demonstrated that Respondent lacks rights or legitimate interests in the disputed domain name, or that it was used in bad faith.
The foregoing is not intended as slavish insistence on procedure or the final stroke in a game of “gotcha.” Requiring that each party submit available proof sufficient to establish the requisite Policy elements is a necessary corollary of the Policy's purpose of providing an expeditious means of resolving a narrow class of disputes involving cybersquatting. Each party is allowed a single filing, oral testimony is not allowed, there are no discovery proceedings, and, in the absence of exceptional circumstances, the Panel is required to render a decision two weeks after appointment. For a panel to meet this deadline a party must provide with its pleading such proof as is necessary to establish the Policy elements. Complainant here failed to do so even when it responded to the Complaint deficiency notice.
Many panels have noted that the Policy is intended solely for a limited class of cases, those involving cybersquatting. Though less the subject of Panel decisions, equally fundamental to sound functioning of the Policy and respect for Panel decisions is the fact that panelists, all of whom are private individuals rather than elected or appointed judges, operate under a brief strictly circumscribed by the language of the Policy, the Rules, and the provider's Supplemental Rules. When a registrant submits to a Policy proceeding in its agreement with a registrar, it consents to a proceeding operated in accordance with the Policy and the Rules; it has not granted a panel general jurisdiction to operate as he or she sees fit. The Policy and the Rules require the Panel to determine this matter on the evidence, and there is no evidence to support allegations necessary to establish that Respondent registered the disputed domain name in bad faith or lacks rights or a legitimate interest in it. Particularly when such proof, if it exists, is readily available to a party without recourse to discovery, unsupported factual allegations are insufficient to make out a claim under the Policy.
Complainant is not without recourse should the matters alleged in the Complaint in fact be true. The Panel's decision is not intended to nor should it encumber Complainant's ability to seek judicial recourse or otherwise.
The Complaint is denied.
Richard G. Lyon
Dated: December 30, 2008
1 The Center's records indicate that the hard copy of the Complaint sent to Respondent by post/courier was duly delivered, so there is no question that Respondent was notified of this proceeding.
2 The Panel recognizes that this view is not uniformly held. See, e.g., Last Minute Network Limited v. Web Domain Names, WIPO Case No. D2007-1161; Aditya Birla Nuvo Limited v. H J Shin, WIPO Case No. D2006-0224). This Panel, however, adheres to the consensus view in the WIPO Overview both as consistent with the Policy and the Rules and as Policy precedent entitled to panels' deference, see WIPO Overview, paragraph 4.1.
3 WIPO Overview, paragraph 1.7, consensus view, and cases there cited.