Pleasureboutique.com

The timeline behind pleasureboutique.com

Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.

Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.

NATIONAL ARBITRATION FORUM DECISION Lisa Larae Cline v. Pleasure Boutique Claim Number: FA0703000937086 PARTIES Complainant is Lisa Larae Cline (“Complainant”), represented by Robert L. Shaver of Dykas, Shaver & Nipper, LLP, PO Box 877, Boise, ID 83701-0877. Respondent is Pleasure Boutique (“Respondent”), 214 Petain St SW, Hartselle, AL 35640-3230. REGISTRAR AND DISPUTED DOMAIN NAME The domain name at issue is <pleasureboutique.com>, registered with Network Solutions, Inc. PANEL The undersigned certifies that she has acted independently and impartially and that to the best of her knowledge she has no known conflict in serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits as Panelist. PROCEDURAL HISTORY Complainant submitted a Complaint to the National Arbitration Forum electronically March 13, 2007; the National Arbitration Forum received a hard copy of the Complaint March 19, 2007. On March 14, 2007, Network Solutions, Inc. confirmed by e-mail to the National Arbitration Forum that the <pleasureboutique.com> domain name is registered with Network Solutions, Inc. and that Respondent is the current registrant of the name. Network Solutions, Inc. verified that Respondent is bound by the Network Solutions, Inc. registration agreement and thereby has agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”). On March 27, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of April 16, 2007, by which Respondent could file a Response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts, and to postmaster@pleasureboutique.com by e-mail. A timely Response was received and determined to be incomplete on April 2, 2007. Neither party filed Additional Submissions. On April 20, 2007, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. Carolyn Marks Johnson as Panelist. RELIEF SOUGHT Complainant requests that the domain name be transferred from Respondent to Complainant. PARTIES’ CONTENTIONS A. Complainant makes the following allegations in this proceeding: 1. Respondent registered a domain name, <pleasureboutique.com>, that is identical to or confusingly similar to a mark in which Complainant has exclusive rights. 2. Respondent has no rights to or legitimate interests in the mark contained within the disputed domain name. 3. Respondent registered and used the domain name in bad faith. B. Respondent makes the following points in Response: 1. Respondent filed a nine-page outline entitled “Introduction to Legal Methods and Process.” Respondent makes no presentation for the first element that the disputed domain name is identical to or confusingly similar to a mark in which Complainant has rights. 2. Respondent makes no Response directed to the second element of rights to and legitimate interests in the domain name. 3. Respondent makes no Response directed to the third element of bad faith registration and use. C. Additional Submissions Neither party filed additional submissions. FINDINGS Complainant is Lisa Larae Cline, President of Pleasure Boutique, according to the Complaint. Complainant purports to be the holder of the trademark PLEASURE BOUTIQUE; however, the United States Patent and Trademark Office issued a service mark registration for PLEASURE BOUTIQUE to LARAE, INC., identified as an Idaho Corporation. The USPTO registration was issued July 12, 2005; however LARAE, INC. apparently supported the application with the assertion of a first use in commerce date of March 31, 1998. Respondent registered the <pleasureboutique.com> domain name July 28, 2001, and the registrant is shown as Pleasure Boutique, in Hartselle, Alabama. Complainant supported her Complaint with a xerox copy of the USPTO Registration information. Respondent brought no support and a deficient Response. DISCUSSION Paragraph 15(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (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 Complainant to 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; (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. Deficient Response The Panel addresses first Respondent’s deficient Response. The Response was filed timely but was deficient in that a hard copy of the Response was not received by the Forum by the date of the deadline for filing a hard copy of the Response. The Panel has discretion to decide whether or not to consider Respondent’s submission when the submission is not in compliance with the rules. See Schott Glas v. Necschott, D2001-0127 (WIPO Mar. 14, 2001) (choosing not to consider the response in light of formal deficiencies); see also Telstra Corp. v. Chu, D2000-0423 (WIPO June 21, 2000) (finding that any weight to be given to the lateness of the response is solely in the discretion of the panelist). But see Strum v. Nordic Net Exch. AB, FA 102843 (Nat. Arb. Forum Feb. 21, 2002) ("Ruling a Response inadmissible because of formal deficiencies would be an extreme remedy not consistent with the basic principles of due process."); see also Bd. of Governors of the Univ. of Alberta v. Katz, D2000-0378 (WIPO June 22, 2000) (finding that a panel may consider a response which was one day late, and received before a panelist was appointed and any consideration made). The Panel has reviewed the submissions of both parties and finds that the deficient nature of the Response is irrelevant to the outcome here. The Response is an unsigned outline entitled “Introduction to Legal Methods and Process” and nothing in it addresses the elements in this dispute. Respondent’s Failure To Substantively Reply To Complaint The Panel next addresses Respondent’s failure to substantively reply to the Complaint. Respondent’s submission appears to be an outline entitled “Introduction to Legal Methods and Process.” While interesting, the Panel cannot give weight to the submission because its content is irrelevant to this dispute and does not address the elements at issue here. A broad reading of the outline shows only tangential relation to legal issues that might also affect arbitration cases. Respondent does not include a cover letter to explain Respondent’s intent or provide any extrinsic support for what should be Respondent’s position in the dispute. Complainant’s Failure to Show Authority to act for LARAE, INC. Complainant in this action is Lisa Larae Cline, who in the Complaint identifies herself as President, Pleasure Boutique; however the applicant for the Registration of the PLEASURE BOUTIQUE mark was LARAE, INC., which is not a party to this proceeding. Complainant did not produce any extrinsic document or statement to establish Lisa Larae Cline’s relationship with LARAE, INC., or her authority, if any, to act on behalf of LARAE, INC. The only extrinsic proof submitted by Complainant was a xerox copy of the USPTO Registration for PLEASURE BOUTIQUE, along with a Network Solutions page for the pleasureboutique.com website that recites: “This site is under construction and coming soon.” The only information available to the Panel shows that LARAE, INC., holds a registration for PLEASURE BOUTIQUE. Identical to and/or Confusingly Similar Although Complainant Lisa Larae Cline does not assert common law rights in the PLEASURE BOUTIQUE mark, Complainant asserted rights in the PLEASURE BOUTIQUE mark beginning March 31, 1998, the date listed on LARAE, INC.’s United States Patent and Trademark Office (“USPTO”) trademark registration as LARAE, INC.’s date of first use of the mark in commerce. Were Complainant Lisa Larae Cline properly identified as LARAE, INC., Complainant need only show a federal trademark registration to establish rights in the mark and need only assert March 31, 1998, as the date of first use in commerce in the USPTO filing to establish secondary meaning in the mark pursuant to Policy ¶ 4(a)(i). See SeekAmerica Networks Inc. v. Masood, D2000-0131 (WIPO Apr. 13, 2000) (finding that the Rules do not require that the complainant's trademark or service mark be registered by a government authority or agency for such rights to exist); see also S.A. Bendheim Co., Inc. v. Hollander Glass, FA 142318 (Nat. Arb. Forum Mar. 13, 2003) (holding that the complainant established rights in the descriptive RESTORATION GLASS mark through proof of secondary meaning associated with the mark). The disputed domain name contains LARAE, INC.’s mark in its entirety, eliminates the space between the two words of the mark and adds the generic top-level domain (“gTLD”) “.com.” The elimination of a space between words of a protected mark and the addition of a gTLD to an otherwise identical mark fail to sufficiently distinguish the domain name from the mark pursuant to Policy ¶ 4(a)(i). See Pomellato S.p.A v. Tonetti, D2000-0493 (WIPO July 7, 2000) (finding <pomellato.com> identical to the complainant’s mark because the generic top-level domain (gTLD) “.com” after the name POMELLATO is not relevant); see also Wembley Nat’l Stadium Ltd. v. Thomson, D2000-1233 (WIPO Nov. 16, 2000) (finding that the domain name <wembleystadium.net> is identical to the WEMBLEY STADIUM mark). Respondent did not substantively reply to Complainant’s allegations. The record shows that the disputed domain name registration predates the date of LARAE, INC.’s trademark registration; although the first use in commerce precedes registration of the domain name. However, nothing before the Panel confers rights in the PLEASURE BOUTIQUE mark registered to LARAE, INC., to either Complainant or Respondent. The Panel finds that Complainant failed to satisfy Policy ¶ 4(a)(i) because Complainant does not show rights in the PLEASURE BOUTIQUE mark in herself but produced a single document that tends to show rights in an entity, LARAE, INC., that is not a party to this proceeding. The Panel further finds that Respondent also failed to come forward with a submission that would permit the Panel to find that Respondent has such rights. The Panel finds that neither Complainant nor Respondent satisfied ICANN Policy ¶ 4(a)(i). There being a finding that neither party to this action established rights in the mark contained within the disputed domain name, the Panel finds that it is not necessary to address the final two elements. Rights and Legitimate Interests: Given the Ruling above, the Panel does not address this element. Registration and Use in Bad Faith: Given the Ruling above, the Panel does not address this element. DECISION Having failed to establish any one of the three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED. Accordingly, it is Ordered that the <pleasureboutique.com> domain name NOT be TRANSFERRED from Respondent to Complainant. Hon. Carolyn Marks Johnson, Panelist Dated: April 29, 2007. Click Here to return to the main Domain Decisions Page. Click Here to return to our Home Page NATIONAL ARBITRATION FORUM

Source of record: FORUM . Reproduced for research; FORUM is the authoritative source.