NATIONAL ARBITRATION FORUM
Arizona State Trailer Sales, Inc. d/b/a Little Dealer Little Prices RV v. World Wide RV
Claim Number: FA1003001315658
Complainant is Arizona State Trailer Sales, Inc. d/b/a
Little Dealer Little Prices RV ("Complainant"), represented by
Joseph J. Weissman, of Johnson, Pope, Bokor, Ruppel & Burns,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <littledealerrv.com>, registered with Godaddy.com, Inc.
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.
David A. Einhorn appointed as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on March 25, 2010.
On March 29, 2010, Godaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <littledealerrv.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 March 31, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 20, 2010 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to email@example.com. Also on March 31, 2010, the Written Notice of the Complaint, notifying Respondent of the email addresses served and the deadline for a
Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts.
A timely Response was received and determined to be complete on April 19, 2010.
An Additional Submission from Complainant was received and determined to be complete on April 23, 2010.
An Additional Submission from Respondent was received and determined to be complete on April 28, 2010.
On April 23, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed David A. Einhom as Panelist.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant's Contentions
(1) Respondent's domain name <littledealerrv.com> is confusingly similar to Complainant's LITTLE DEALER LITTLE PRICES registered mark, and Complainant's LITTLE DEARLER LITTLE PRICES RV and LITTLE DEALER common law marks.
(2) Respondent does not have any rights or legitimate interests in this domain name
(3) The domain name was reissued and is being used in bad faith.
B. Respondent's Contentions
Respondent registered the domain name before Complainant registered the LITTLE DEALER LITTLE PRICES mark.
C. Additional Submissions
The additional submissions of Complainant and Respondent do not address any additional issues relevant to the decision rendered herein.
DISCUSSION AND FINDINGS
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 to a Mark in Which Complainant Has Rights
Paragraph 4(a)(i) of the Policy requires Complainant to show that Respondent's domain name is identical or confusingly similar to Complainant's marks. This provision necessarily implies that Complainant's rights must predate the registration of Registrant's domain name. Expert Computer Inc. v. Name Delegation c/o Domain Administrator, FA 787937 (Nat. Arb. Forum Oct. 24, 2006). Respondent registered the domain name <littledealerrv.com> on April 19, 2006, which is prior to both Complainant's filing and registration dates of its trademark LITTLE DEALER LITTLE PRICES. As Complainant has not shown that its rights pre-date the registration of Registrant's domain name, Complainant has not satisfied paragraph 4(a)(i) of the Policy. (It should further be noted that even if Complainant's registration could be considered, it is doubtful that Respondent's use of only two of the four words in Complainant's mark as a portion of its domain name would create confusing similarity, particularly since the term LITTLE PRICES constitutes a significant portion of the mark).
To the extent that Complainant's Complaint alleges common law rights to the mark LITTLE DEALER, it should be noted that Complainant has not provided evidence that said mark has acquired secondary meaning. Complainant has only made the bare allegation that it is known as "little dealer". Neither does Complainant's mere use of this term as a domain name, i.e., <littledealer.com>, confer upon it any protectable rights under the Policy. Absent proof of secondary meaning, this Panel cannot conclude that Complainant has any protectable common law rights to the mark LITTLE DEALER. DotNetNuke Corporation v. Namebubble, LLC, FA 1180949 (Nat. Arb. Forum June 18, 2008)(holding in favor of Respondent because Complainant had not provided evidence to establish secondary meaning). See also, United States Fire Arms Manufacturing Company v. Salvia Corporation, FA 612350 (Nat. Arb. Forum Feb. 1, 2006)("The type of evidence generally required to support a finding of common law rights in a mark includes business sales figures, revenue, advertising expenditures, number of consumers served, and evidence that there is a strong identification of the mark with Complainant's goods or services").
Because the Panel has determined that Complainant has not satisfied this requirement of Policy 4(a)(1), there is no need to determine whether Respondent has rights or legitimate interests in the domain name, or whether Respondent registered or used the domain name in bad faith.
Having failed to establish the first element required under the ICANN Policy, the Panel concludes that relief shall be DENIED.
Accordingly, it is Ordered that the <littledealerrv.com> domain name remain registered to Respondent.
David A. Einhorn,
Dated: May 7, 2010
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