PSC Management Limited Partnership v. Rupali S
Claim Number: FA0708001068840
Complainant is PSC Management Limited Partnership (“Complainant”), represented by Cathryn
Berryman, of Winstead, P.C., 5401
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <uk-perotsystems.com>, registered
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.
Calvin A. Hamilton as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on August 27, 2007; the National Arbitration Forum received a hard copy of the Complaint on August 29, 2007.
On August 28, 2007, Melbourne It, Ltd. d/b/a Internet Names Worldwide confirmed by e-mail to the National Arbitration Forum that the <uk-perotsystems.com> domain name is registered with Melbourne It, Ltd. d/b/a Internet Names Worldwide and that the Respondent is the current registrant of the name. Melbourne It, Ltd. d/b/a Internet Names Worldwide has verified that Respondent is bound by the Melbourne It, Ltd. d/b/a Internet Names Worldwide 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 September 5, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of September 25, 2007 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 email@example.com by e-mail.
A timely Response was received on September 25, 2007. The Response was deficient under ICANN Rule 5 as it was received in electronic copy only.
On October 1st, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Calvin A. Hamilton as Panelist.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
a. The domain name <uk-perotsystems.com> is identical and/or confusingly similar to a trademark or service mark in which the Complainant has rights;
b. Respondent has no rights or legitimate interests in respect of the domain name that is subject to the complaint;
c. Respondent registered and used the domain name in bad faith.
B. Respondent makes the following assertions:
a. Respondent does not wish to continue use of domain name <uk-perotsystems.com>.
b. Respondent does not wish to proceed with the dispute.
c. Respondent would like to transfer the domain name <uk-perotsystems.com>.
The Panel will not make any findings of fact, for the reasons explained below.
The first issue to be decided by this Panel is a procedural issue, namely whether or not to admit the Response, which, although the National Arbitration Forum received Respondent’s electronic submission in a timely manner, Respondent failed to submit a hard copy within the time allowed as required by ICANN Rule 5. Therefore the Panel has sole discretion as to the amount of weight given to the Response submitted electronically. See Telstra Corp. v. Chu, D2000-0423 (WIPO June 21, 2000) (finding that any weight to be given to the lateness of the response is solely in the discretion of the panelist). The Panel, according to the discretionary faculty granted, may decide to accept the Response. See Gaiam, Inc. v. Nielsen, FA 112469 (Nat. Arb. Forum July 2, 2002) (“In the interest of having claims decided on the merits and not by default and because Complainant has not been prejudiced in the presentation of its case by the late submission, Respondent’s opposition documents are accepted as timely.”).
Under Paragraph 14(b) of the Rules, it is established that: "If a Party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, these Rules or any request from the Panel, the Panel shall draw such inferences therefrom as it considers appropriate".
Given that the non-compliance of the Rules is of a technical nature, the Panel accepts the response and will give the document due consideration. See Six Continents Hotels, Inc. v. Nowak, D2003-0022 (WIPO Mar. 4, 2003) (holding that the respondent’s failure to submit a hard copy of the response and its failure to include any evidence to support a finding in its favor placed the respondent in a de facto default posture, permitting the panel to draw all appropriate inferences stated in the complaint); see also J.W. Spear & Sons PLC v. Fun League Mgmt., FA 180628 (Nat. Arb. Forum Oct. 17, 2003) (finding that where the respondent submitted a timely response electronically, but failed to submit a hard copy of the response on time, “[t]he Panel is of the view that given the technical nature of the breach and the need to resolve the real dispute between the parties that this submission should be allowed and given due weight”).
Preliminary Issue: Consent to Transfer the Subject Domain Name
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 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;
(1) Respondent has no rights or legitimate interests in respect of the domain name; and
(2) the domain name has been registered and is being used in bad faith.
However, in this case Respondent does not contest any of Complainant’s allegations regarding the <uk-perotsystems.com> domain name. Rather, Respondent has consented to judgment in favor of Complainant and authorizes the immediate transfer of the subject domain name. In circumstances such as the matter before this Panel, where a respondent has admitted that it does not have an interest in the disputed domain name and has consented to the transfer of the disputed domain name, the Panel may forego the traditional UDRP analysis and order the immediate transfer of the disputed domain name. 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.”).
The Panel in this matter feels that it is indeed expedient and judicial to order the transfer of the domain name. Relief is accordingly so GRANTED.
Accordingly, it is Ordered that the <uk-perotsystems.com> domain name be TRANSFERRED from Respondent to Complainant.
Calvin A. Hamilton, Panelist
Dated: October 15, 2007
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