Decisión del Panel Administrativo nº D2018-1421 of WIPO Arbitration and Mediation Center, October 12, 2018 (case Mary Victoria Kufeldt-Antle and Quadgirl, S. de R.L. de C.V. v. Kelly Williamson Martin, Kelly MacRae, Kelly Martin)
| Resolution Date | October 12, 2018 |
| Issuing Organization | WIPO Arbitration and Mediation Center |
| Decision | Complaint denied |
| Dominio | Generic Domains |
Complainants are Mary Victoria Kufeldt-Antle (“ComplainantMary”) and Quadgirl, S. de R.L. de C.V. (“ComplainantCo”) of Los Barriles, Baja California Sur, Mexico, represented by Consultoría MD, Mexico.
Respondent is Kelly Williamson Martin, Kelly MacRae, Kelly Martin, of Los Barriles, Baja California Sur, Mexico, self-represented.
The disputed domain names are [quadgirl.com], [quadgirl.info] and [quadgirl.net] which are registered with Wild West Domains, LLC, and [quadgirlmx.com] which is registered with GoDaddy.com, LLC (the “Registrars”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 26, 2018. On June 28, 2018, the Center transmitted by email to the Registrars a request for registrar verification in connection with the disputed domain names. On June 29, 2018, the Registrars transmitted by email to the Center their verification response confirming that Respondent is listed as the registrant of the disputed domain name [quadgirlmx.com] and providing the contact details of the registrant of the other disputed domain names.
On July 12, 2018, the Center sent an email in English and Spanish to the Parties regarding the language of the proceeding, since the Complaint was filed in English and Spanish and the language of the registration agreement is English. On July 14, 2018, Complainants reiterated their request of having Spanish as the language of the proceeding. On July 17, 2018, an entity claiming that would act as Respondent’s representative accepted in having Spanish as the language of the proceeding. In response to a request of clarification by the Center in relation to the existence of multiple underlying registrants, Complainants filed an amended Complaint on July 14, 2018. In response to a request of clarification by the Center, Complainants filed an amendment to the amended Complaint on July 23, 2018.
The Center verified that the Complaint together with the amended Complaint and the amendment to the amended Complaint (hereinafter, the “Complaint”) satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2 and 4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on July 24, 2018. In accordance with the Rules, paragraph 5, the due date for Response was August 13, 2018. On August 13, 2018, Respondent’s representative requested an extension of the Response due date, which the Center granted on that same date and the Response due date was extended to August 17, 2018, in accordance with the Rules, paragraph 5(b). On August 13, 2018, the Center received an email communication from Complainants, which the Center replied on August 14, 2018. The Center received several informal email communications from Respondent on August 15 and 16, 2018, including that she would represent herself. The Center informed the Parties about the commencement of the panel appointment process on August 20, 2018. A supplemental filing was sent by Complainant to the Center on August 20, 2018. Two supplemental filings were sent by Respondent to the Center on August 28 and September 1, 2018.
The Center appointed Gerardo Saavedra as the sole panelist in this matter on September 3, 2018. This Panel finds that it was properly constituted. This 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.
ComplainantMary has rights over the QUADGIRL trademark for which she holds the following registrations with the Mexican Institute of Industrial Property (“IMPI”): registration No. 1893299, in class 35; registration No. 1893303, in class 39; and registration No. 1893304, in class 41, all registered on June 11, 2018 and with application date of March 20, 2018.
ComplainantCo was incorporated through notarial instrument dated January 11, 2018. In such notarial instrument, ComplainantMary appears as the holder of 98% of the equity capital and as Sole Manager of ComplainantCo.
The disputed domain names were created: [quadgirl.com] on January 16, 2017, [quadgirl.info] and [quadgirl.net] on January 26, 2017, and [quadgirlmx.com] on February 26, 2018.
Respondent was an employee of ComplainantMary (and other individual) from April 1, 2017 to April 1, 2018.
According to the evidence provided by Complainants, the website associated to the disputed domain name [quadgirl.com] showed on July 13, 2018, among others, the legends “The Original QuadGril – Kelly. | The Original QuadGirl” followed below by an image with the word “QUADGIRL”, further below “Kelly Martin – The Original QUADGIRL”, and further below “Thanks, to all of you who have supported QUADGIRL through our transition. We are forever grateful for your business.” There is no evidence in the file of the content of the other disputed domain names.
Complainants’ assertions may be summarized as follows.[1 ]
ComplainantMary is the legal owner of the QUADGIRL trademark and of the Quadgirl business engaged in motorcycle rentals, business administration and entertainment services, and also is the former employer of Respondent who worked as general manager at such Quadgirl business from April 1, 2017 to April 1, 2018.
ComplainantCo was formed to give a better business cohesion to the motorcycle rentals, business administration and entertainment services, and it was supposed to be the assignee of the disputed domain names which has not been possible due to the commercial hostile attitudes of Respondent that includes the wronlgy appropriation of the websites subject matter of the dispute.
Respondent (Kelly Williamson Martin, also known as Kelly Martin and/or Kelly MacRae) is a citizen of the United States of America with permanent residence in Mexico.
In early January 2017 ComplainantMary had a meeting with Respondent. Since Respondent had just recently stopped being manager of a quad rental business, property of her former husband, ComplainantMary offered Respondent to work as manager for a business entity of quad rentals to be named Quadgirl, and to that end ComplainantMary started to get investors and to create prospective channels. As of that time, Respondent started to perform diverse acts in the name of ComplainantMary.
On March 1, 2017, ComplainantMary signed a lease agreement over a real property, where since then the Quadgirl quad rental business has been located. Since the aforementioned date such business has been...
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