The year 2013 ends with good news for my client who had to defend a UDRP on TriPacific.com. The National Arbitration Forum Denied the claim of TriPacific Capital Advisors, LLC, as the Claimant didn’t begin to use the common law mark until 4 years after the domain was registered.
Here is the decision:
NATIONAL ARBITRATION FORUM
TriPacific Capital Advisors, LLC v. ahura fze / domain admin
Claim Number: FA1311001530299
Complainant is TriPacific Capital Advisors, LLC (“Complainant”), represented by Daniel M. Livingston of Payne & Fears LLP, California, USA. Respondent is ahura fze / domain admin (“Respondent”), represented by Howard Neu of Law Office of Howard Neu, P.A., Florida, USA.
Because Respondent registered the domain name over four years before the Complainant began using its mark in commerce the Complainant did not establish bad faith registration of the domain name.
Paragraph 15(a) of the Rules instructs this Panel to “decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.”
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
Because the Panel concludes that Complainant has not satisfied Policy ¶ 4(a)(iii), the Panel declines to analyze the other two elements of the Policy. E.g., Creative Curb v. Edgetec Int’l Pty. Ltd., FA 116765 (Nat. Arb. Forum Sept. 20, 2002) (finding that because the complainant must prove all three elements under the Policy, the complainant’s failure to prove one of the elements makes further inquiry into the remaining element unnecessary); Hugo Daniel Barbaca Bejinha v. Whois Guard Protected, FA 836538 (Nat. Arb. Forum Dec. 28, 2006) (deciding not to inquire into the respondent’s rights or legitimate interests or its registration and use in bad faith where the complainant could not satisfy the requirements of Policy ¶ 4(a)(i)).
Registration and Use in Bad Faith
The record indicates that Respondent registered the
Having not established all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.
Accordingly, it is Ordered that the
Hon. Neil Brown QC, G. Gervaise Davis III
and Hon. Bruce E. Meyerson (Ret.), Panelists
Dated: December 26, 2013
The Neu Facebook