Twilio Inc. v. Kaden Kelsey / Trifecta IT Solutions Pty Ltd
Claim Number: FA2202001983820
Complainant is Twilio Inc. (“Complainant”), represented by Jessica Tam of Cobalt LLP, California, USA. Respondent is Kaden Kelsey / Trifecta IT Solutions Pty Ltd (“Respondent”), Australia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <twiliobilling.com>, registered with GoDaddy.com, LLC.
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 9, 2022; the Forum received payment on February 9, 2022.
On February 10, 2022, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <twiliobilling.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On February 10, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 2, 2022 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 postmaster@twiliobilling.com. Also on February 10, 2022, the Written Notice of the Complaint, notifying Respondent of the e-mail 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.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default. Respondent did however send emails to the Forum, see below.
On March 4, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant states that it offers cloud communications services. Founded in 2008, Complainant is a worldwide leader in cloud communications. It is not an exaggeration to say Complainant’s services touches directly upon millions of lives. This is because Complainant’s cloud communication platform is the plumbing upon which many modern mobile applications are built upon. Every time a consumer calls for a ride through Uber, orders food from DoorDash, or books a stay with Airbnb, it is highly likely that customer is using Complainant’s services. Complainant a truly global company whose technology has democratized communications infrastructure by allowing millions of developers around the world to easily create communication channels in the products they build. Complainant is currently headquartered in San Francisco, California, but has 26 offices in 17 countries all over the world. In fiscal year 2020, Complainant’s full year of revenue was $1.8 billion, and the company’s current valuation is at $40.66 billion. Complainant asserts rights in the TWILIO mark based upon its registration with multiple trademark agencies, including in the United States in 2011.
Complainant alleges that the disputed domain name is confusingly similar to its TWILIO mark because it contains the mark in its entirety, merely adding the descriptive/generic term “billing” and the generic top-level domain (“gTLD”) “.com”. Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain name. Respondent is neither licensed nor authorized to use Complainant’s TWILIO mark and is not commonly known by the disputed domain name. Additionally, Respondent does not use the disputed domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the disputed domain name to pass off as Complainant. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent uses the disputed domain name to pass off as Complainant and offer a competing service. Additionally, Respondent had actual and constructive knowledge of the TWILIO mark before registering the disputed domain name. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding. In its emails to the Forum, Respondent states, in pertinent part: “We would like to offer a service product which benefits Twilio partners and customers. We’ve even asked to be a service partner, which we’ve been ignored on this topic as well. It’s a bit unclear how we can market our product without using the word Twilio as this is purely a Twilio focused product. Previously, we have asked permission to use the trademark in this way. This is why we specified Twilio being a registered trademark at the bottom of the page.” And: “The site has been take down. We do not wish to dispute the claims. We will let the domain name default at the next renewal period. In the meantime we will cease to use the domain moving forward.”
For the reasons set forth below, the Panel will not make any findings of fact.
Paragraph 4(a) of the Policy requires that 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 Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(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.
Paragraph 15(a) of 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."
The Panel interprets Respondent’s second email to the Forum as consent to transfer the disputed domain name. Thus, in the present case, the parties have both asked for the domain name to be transferred to the Complainant. In accordance with a general legal principle governing arbitrations as well as national court proceedings, this Panel holds that it cannot act nec ultra petita nec infra petita, that is, that it cannot issue a decision that would be either less than requested, nor more than requested by the parties. Since the requests of the parties in this case are identical, the Panel has no scope to do anything other than to recognize the common request, and it has no mandate to make findings of fact or of compliance (or not) with the Policy.
See Malev Hungarian Airlines, Ltd. v. Vertical Axis Inc., FA 212653 (Forum Jan. 13, 2004); see also Boehringer Ingelheim Int’l GmbH v. Modern Ltd. – Cayman Web Dev., FA 133625 (Forum Jan. 9, 2003) (transferring the domain name registration where the respondent stipulated to the transfer); see also Disney Enters., Inc. v. Morales, FA 475191 (Forum June 24, 2005) (“[U]nder such circumstances, where Respondent has agreed to comply with Complainant’s request, the Panel felt it to be expedient and judicial to forego the traditional UDRP analysis and order the transfer of the domain names.”).
For the reasons set forth above, the Panel will not analyze this element of the Policy.
For the reasons set forth above, the Panel will not analyze this element of the Policy.
For the reasons set forth above, the Panel will not analyze this element of the Policy.
Given the common request of the Parties, it is Ordered that the <twiliobilling.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: March 4, 2022
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