Barnie's II, Inc. v.
RareNames, WebReg
Claim Number: FA0707001031519
PARTIES
Complainant is Barnie's II, Inc. (“Complainant”), represented by Collin
B. Foulds, of Gray, Plant, Mooty, Mooty & Bennett,
P.A., 500 IDS Center,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <barnies.com>, registered with Domaindiscover.
PANEL
The undersigned certifies that he or she has acted independently and
impartially and to the best of his or her knowledge has no known conflict in
serving as Panelist in this proceeding.
Judge
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
electronically on July 11, 2007; the
National Arbitration Forum received a hard copy of the Complaint on July 18, 2007.
On July 21, 2007, Domaindiscover confirmed by e-mail to the
National Arbitration Forum that the <barnies.com> domain name is
registered with Domaindiscover and that
the Respondent is the current registrant of the name. Domaindiscover
has verified that Respondent is bound by the Domaindiscover
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 23, 2007, a Notification
of Complaint and Commencement of Administrative Proceeding (the “Commencement
Notification”), setting a deadline of August 13, 2006 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@barnies.com by e-mail.
A timely electronic copy of the Response was received and determined to
be complete on August 14, 2007. However, a hard copy of the Response was
received after the deadline for response.
Therefore, the Forum does not consider this Response to be in compliance
with ICANN Rule 5(a).
On August 17, 2007, pursuant to Complainant’s
request to have the dispute decided by a single-member Panel, the National
Arbitration Forum appointed Judge
DISCUSSION AND FINDINGS
Respondent did not submit a timely hard copy
of its Response in accordance with ICANN Rule 5. Its failure so to do is irrelevant in light
of its stipulation to transfer to Complainant the disputed domain name (see infra).
Complainant charges that the disputed domain
name falls within the Policy requirements and must be transferred to it. Although Respondent does not agree that it
acted in bad faith by registering and using the disputed domain name, it has
stipulated that the disputed domain name be transferred to Complainant.
In the recent matter of Levantur,
Previous panels have held that a genuine
unilateral consent to transfer by the Respondent provides a basis for an
immediate order for transfer without consideration of the elements of paragraph
4(a) of the Rules. Where the Complainant
has sought transfer of a disputed domain name, and the Respondent consents to
transfer, then pursuant to paragraph 10 of the Rules the Panel can proceed
immediately to make an order for transfer. Williams-Sonoma,
Inc. v. EZ-Port, WIPO Case No. D2000-0207, The Cartoon Network LP, LLLP v. Mike Morgan, WIPO Case No.
D2005-1132 and Valero Energy Corporation,
Valero Refining and Marketing Company v. RareNames WebReg, WIPO Case No. D2006-1336.
And, in American
International Group, Inc. v. RareNames WebReg, FA 648253 (Nat. Arb. Forum April 6, 2006), the Panelist
concluded:
When a respondent has agreed to comply with
the complainant’s request, the panel may decide to forego the traditional UDRP
analysis and summarily order the transfer of the domain names. See
Boehringer Ingelheim Int’l GmbH v. Modern Ltd. – Cayman Web Dev., FA 133625
(Nat. Arb. Forum Jan. 9, 2003) (transferring the domain name registration where
the respondent stipulated to the transfer); see
also Malev Hungarian Airlines Ltd. v. Vertical Axis Inc., FA 212653 (Nat.
Arb. Forum Jan. 13, 2004) (‘In this case, the parties have both asked for the
domain name to be transferred to the Complainant….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 also Disney Enters., Inc. v. Morales, FA 475191 (Nat. Arb.
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.’); see also Mary Frances
Accessories, Inc. v. Shoe Salon, FA 528458 (Nat. Arb. Forum Sept. 6, 2005);
see also Dame Elizabeth Taylor, The
Elizabeth Taylor Cosmetics Company & Interplanet Productions Limited v. K.
Myers, FA0508000547795 (Nat. Arb. Forum Oct. 18, 2005).
This Panelist agrees with the reasoning and
conclusions of the above matters, and, further, in the interest of arbitral
economy for all involved, the disputed domain name will be transferred to
Complainant.
DECISION
By virtue of Respondent’s stipulation to transfer the disputed domain
name, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <barnies.com> domain name be TRANSFERRED
from Respondent to Complainant.
JUDGE IRVING H. PERLUSS (RETIRED)
Dated: August 31,
2007
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