In a recent National Arbitration Forum decision, Skyy Spirits, LLC v. Stanislaw Krenszczynski (Nat. Arb. Forum 1220829 November 26, 2008), the Panel was faced with a decision over the disputed domain www.skyyvodkas.com. The Complainant sells the well known SKYY VODKA and maintains a website at www.skyy.com. The Panel did not provide a summary of factual allegations, but a quick check of the disputed domain reveals that it resolves to a parked page with third party links (a parking service). The Respondent did not provide a response to the Complaint.

The Panel found that Complainant’s registration of the mark SKYY VODKA provided sufficient rights and that the disputed domain was identical or confusingly similar to that mark. The Panel next moved into an analysis regarding the Respondent’s rights or legitimate interests in the domain. The Panel explained:

In this case, Complainant has made an allegation that Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).  However, Complainant has failed to offer any evidence, such as an Internet screenshot indicating where the disputed domain name leads, that would corroborate a use or non-use.  Because it is Complainant’s burden to set forth its prima facie case in its submission, and because Complainant has not done do, the Panel has no choice but to find that Complainant has failed to make its prima facie case under Policy ¶ 4(a)(ii).

As a result, the Panel found that the Complainant failed to submit evidence as to how Respondent was using the domain, namely “no bona fide use.” Moving on to the last prong of the ICANN analysis, whether there was registration and use in bad faith, the Panel explained, “there is no allegation or supplied evidence demonstrating the use or non-use of the disputed domain name.  Thus, the Panel is unable to make a finding of bad faith on the merits of the case.  Due to this evidentiary deficiency, the Panel cannot make a finding regarding bad faith registration and use under Policy ¶ 4(a)(iii).”

Ultimately the Panel DENIED the Complainant’s request for transfer.