Dryforce.com

The timeline behind dryforce.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 Dry Force Inc. v. Jerry Davis Claim Number: FA0807001213759 PARTIES Complainant is Dry Force Inc. (“Complainant”), represented by Alan L. Edwards, of Kunzler & McKenzie, Utah, USA. Respondent is Jerry Davis (“Respondent”), represented by David P. Hathaway, Florida, USA. REGISTRAR AND DISPUTED DOMAIN NAME The domain name at issue is <dryforce.com>, registered with Godaddy.com, Inc. PANEL The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding. James A. Carmody, Esq., as Panelist. PROCEDURAL HISTORY Complainant submitted a Complaint to the National Arbitration Forum electronically on July 3, 2008; the National Arbitration Forum received a hard copy of the Complaint on July 7, 2008. On July 4, 2008, Godaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <dryforce.com> domain name is registered with Godaddy.com, Inc. and that the Respondent is the current registrant of the name. Godaddy.com, Inc. has verified that Respondent is bound by the Godaddy.com, Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”). On July 11, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of July 31, 2008 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@dryforce.com by e-mail. A timely Response was received and determined to be complete on July 29, 2008. On August 6, 2008, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A. Carmody, Esq., as Panelist. RELIEF SOUGHT Complainant requests that the domain name be transferred from Respondent to Complainant. PARTIES’ CONTENTIONS A. Complainant makes the following assertions: 1. Respondent’s <dryforce.com>, the domain name at issue, is identical or confusingly similar to Complainant’s DRY FORCE mark. 2. Respondent does not have any rights or legitimate interests in the domain name at issue. 3. Respondent registered and used the domain name at issue in bad faith. B. Respondent makes the following assertions: 1. Respondent does not dispute that the domain name at issue is identical or confusingly similar to Complainant’s mark. 2. Respondent claims rights and legitimate interests in the DRY FORCE mark and in the domain name at issue. 3. Respondent asserts that it did not register or use the domain name at issue in bad faith. FINDINGS Complainant has rights in the DRY FORCE mark through registration with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 3,007,106 issued October 18, 2005, filed April 30, 2004). Further, Complainant alleges common law use of the mark DRY FORCE since January of 2003 for water removal services. Respondent does not dispute Complainant’s rights in the DRY FORCE mark. Rather, Respondent chronicles his own rights, use and legitimate interests in the domain name at issue. Respondent asserts that the disputed domain name is used as part of its business model. Respondent uses the disputed domain name to host e-mail addresses for its employees and asserts plans to use it for a website in the future. Apparently, Respondent is in the business of repairing water damage to carpets and other items in connection with insurance claims and re-branded itself as DRY FORCE in 2006. Respondent does business as Dry Force, LLC and claims to be known by the domain name at issue which it uses daily to communicate with employees. There is disputed sworn evidence as to whether the Respondent attempted to sell the domain name at issue to Complainant for more than out of pocket costs associated with the domain. 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 that the 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 the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; (2) the 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. Identical and/or Confusingly Similar Complainant enjoys rights in the DRY FORCE mark through registration with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 3,007,106 issued October 18, 2005, filed April 30, 2004). Complainant’s valid registration of the DRY FORCE mark establishes rights under Policy ¶ 4(a)(i). See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding that the complainant had established rights in the PENTIUM, CENTRINO and INTEL INSIDE marks by registering the marks with the USPTO); see also Miller Brewing Co. v. Miller Family, FA 104177 (Nat. Arb. Forum Apr. 15, 2002) (finding that the complainant had established rights to the MILLER TIME mark through its federal trademark registrations). Further, Complainant alleges common law use of the mark DRY FORCE since January of 2003. Respondent does not dispute Complainant’s rights in the DRY FORCE mark. The Panel finds that Policy ¶ 4(a)(i) has been satisfied. Rights or Legitimate Interests Respondent is in the business of repairing water damage to carpets and other items in connection with insurance claims and re-branded itself as DRY FORCE in 2006. Respondent does business as Dry Force, LLC and claims to be known by the domain name at issue which it uses daily to communicate with employees. Further, Respondent appears to be commonly known by the DRY FORCE name. Respondent uses the disputed domain name to host e-mail addresses for its employees and asserts plans to use it for a website in the future. Such evidence of use presents a bona fide offering of goods or services under Policy ¶ 4(c)(i). See Smart Design LLC v. Hughes, D2000-0993 (WIPO Oct. 18, 2000) (finding rights and legitimate interests in the domain name where the respondent sought to develop a bona fide business use for the domain name); see also IG Index PLC v. Index Trade, D2000-1124 (WIPO Oct. 16, 2000) (finding that the respondent has rights in the domain name because the respondent’s claimed use of the domain name is a “plausible explanation” to which the panel must give weight). It appears that Respondent acquired the domain name at issue from a third party in September, 2007 in a negotiated transaction for $1,500 plus commissions. Presumably, Complainant could have done the same. The Panel finds that Policy ¶ 4(a)(ii) has not been satisfied. Having found that Respondent has rights in legitimate interests in the domain name at issue, it is not necessary to decide whether the Respondent registered and used the domain at issue in bad faith. Due to disputed factual and legal issues in this case which are beyond the appropriate application of the UDRP, the parties might more effectively avail themselves of the remedies of another forum. DECISION Having failed to establish all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED. James A. Carmody, Esq., Panelist Dated: August 14, 2008 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.