The Center appointed David H. The Panel
Getting Owned 0023 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. The Panel reasoned as follows:. Rule 12 of the Rules unambiguously provides that only the Panel may request further submissions: Nevertheless, without receiving a request from the Panel or seeking leave from the Panel to file a further statement, Complainant submitted
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Although litigants and parties in arbitrations may have a right of reply under the rules of other forums, ICANN chose a different procedure for these proceedings: Among other things, this more truncated procedure allows for more rapid and cost effective resolution of domain name challenges.
At the same time, ICANN provided the Panel with the flexibility to seek additional submissions if the Panel feels that it cannot rule on the record submitted. If a Party wishes to submit a further statement, the better practice under the Rules is to first seek consent from the Panel, with
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Plaza Operating Partners, Ltd. Pop Data Technologies, Inc. Appropriate reasons may include the existence of new, pertinent facts that did not arise until after the submission of the Complaint, Top Driver, Inc. Conversely, a mere longing to reargue the same issues already submitted is not a valid reason for additional submissions. World Wrestling Federation Entertainment, Inc. The advantage of seeking leave
Getting Owned 0023 the first instance is that the Panel would be in a position quickly to rule on the request and, if it determines that a further statement is warranted, set a schedule that is fair to both parties and provides each party with an opportunity to supplement the record.
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This procedure also would save the Parties the expense of preparing further statements that the Panel decides not to accept. See AmeriCares Foundation, Inc. The parties in this case enjoyed a former business relationship. The remainder of the Additional Submission is not accepted. The third section seeks to reargue facts concerning the timing of the domain name registration, which also were adequately addressed in the Complaint.
Of course, the Respondent should submit a confirming hard copy to the Center, as required by the Rules, and must include the certification of Rule 5 a viii. Complainant Custom Bilt Metals is in the business of manufacturing and distributing building materials, including a line of metal roofing products, for commercial and residential use throughout the United States. The roofing products are available in aluminum, steel and copper, and come in a variety of styles tiles, shake, shingles, and sheeting.
Getting Owned 0023 Consulting is "Getting Owned 0023" the business of selling roofing systems to residential clients in Washington State and other parts of the United States.
Sanborn continued to purchase these products after he founded Conquest Consulting. Complainant states that Respondent Conquest Consulting has never been commonly known or associated in any manner with the contested domain name.
Second, Complainant contends that it sent
Getting Owned 0023 product catalogs using the LAST TIME mark in connection with its roofing products, and that Respondent ordered these products from Complainant over an extended period of time. Finally, Complainant contends that the domain name has been registered in bad faith.
In support of this assertion, Complainant points out that the domain name was registered one day
Getting Owned 0023 Respondent closed its account with Complainant. The timing of the registration, Complainant alleges, was out of maliciousness and in order to misleadingly divert consumers from Complainant.
Getting Owned 0023 argues that Complainant does not own any trademark rights in the mark "Last Time" because it is descriptive of the nature of the lifetime warranty Complainant offers with its roofing products.
Respondent claims it had no knowledge at the time it registered the domain name that Complainant ever used the words "Last Time" or that Complainant had trademark rights in those words.
Finally, Respondent contends that it did not register the domain name in bad faith. This disagreement allegedly prompted Respondent to seek a new domain name for its business, Conquest Consulting. It claims, however, that the price is an accurate reflection of the website development costs and damages associated with delays and service problems by Complainant over the course of "Getting Owned 0023" business relationship.
Paragraph 4 a of the Policy provides that, to justify transfer of a domain name, a Complainant must prove each of the following:. Respondent claims that Complainant lacks trademark rights because the words "Last Time" are descriptive of the roofing products that Complainant offers.
Only the words "Metal Roofing" were disclaimed in the registrations; the words "Last Time" were recognized as sufficiently distinctive by the Trademark Office to support registration. Respondent has come forward with no such evidence.
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That position cannot be sustained. See "Getting Owned 0023" Stores, Inc. D September 19, See Magnum Piering, Inc. The Mudjackers and Garwood S. D January 29, Respondent argues that it registered the domain name as a descriptive mark for its own business, with no knowledge that Complainant used a similar mark, and therefore that it has a legitimate interest in this domain name.
In support of this argument, Respondent asserts that it had no idea when it registered the domain name that Complainant was using the mark LAST TIME in connection with the sale of roofing products. In the absence of discovery and live testimony, it can be difficult for
Getting Owned 0023 Panel to evaluate such disputes and make the necessary credibility determinations.
Bootie Brewing Company v. Ward and Grabebottie Inc.
D April 10, The distinguishing words in this mark, LAST TIME, appear in large, all-cap, bold letters in the center of the design, and were displayed at the upper-right corner of the application. This mark appears on numerous pages of these catalogs, in both design form at the top
Getting Owned 0023 bottom of the pages, and in text descriptions of the products.
The uses of the mark in the text are in bold, all-capped letters, and include: Respondent acknowledges that it may have received these catalogs at one time, but claims to have discarded the black binder in which the catalogs may have been sent.
As noted above, Respondent registered the domain name only after his business relationship with Complainant fell apart. One day before sending Complainant a letter terminating their supplier relationship, Respondent registered the domain name. Respondent tries to claim protection in Section 4 b i of the Policy, which states that it is not bad faith to offer to transfer a domain name in return for payment of the "documented out-of-pocket costs directly related to the domain name.
These factors, taken together, are sufficient to
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