Edfinancial Services LLC v.
Claim Number: FA0711001111923
PARTIES
Complainant is Edfinancial Services LLC (“Complainant”), represented by Robert
L. Brewer, of Bass, Berry & Sims
PLC,
REGISTRAR AND
DISPUTED DOMAIN NAMES
The domain names at issue are <edfinancil.com> and <edfinancal.com>, registered with Compana, LLC.
PANEL
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.
Dennis A. Foster as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum electronically on November 19, 2007; the National Arbitration Forum received a hard copy of the Complaint on November 21, 2007.
On November 27, 2007, Compana, LLC confirmed by e-mail to the National Arbitration Forum that the <edfinancil.com> and <edfinancal.com> domain names are registered with Compana, LLC and that the Respondent is the current registrant of the names. Compana, LLC has verified that Respondent is bound by the Compana, LLC 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 December 12, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of January 2, 2008 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@edfinancil.com and postmaster@edfinancal.com by e-mail.
A timely Response was received and determined to be complete on January 2, 2008.
On
January 15, 2007, pursuant to Complainant’s request to have the dispute decided
by a single-member Panel, the
National Arbitration Forum appointed Dennis A. Foster as Panelist.
RELIEF SOUGHT
Complainant requests that the domain names be transferred from Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
- Complainant is a
- Complainant owns a valid registration with the United States Patent and Trademark Office for the service mark, EDFINANCIAL SERVICES (Registration No. 2,977,695) and has a pending service mark application for its mark, EDFINANCIAL. Complainant, and its predecessor in interest, have used both marks in commerce continuously since at least October 1, 2003.
- Complainant also owns the domain name, <edfinancial.com>.
- The disputed domain names are confusingly similar to the principal element of Complainant’s mark, EDFINANCIAL, differing only in that the names omit either the final “i” or the final “a” in the mark.
- Respondent has no rights or legitimate interests in the disputed domain names. Respondent is not commonly known by either of the names. Respondent is not engaged in a bona fide offering of services through the disputed domain names, as Respondent uses the names as mere links to third party web sites, presumably to gain so-called “click-through” fees. Moreover, such use cannot constitute noncommercial or fair use of the names as recognized under the Policy. In short, Respondent is simply engaging in prohibited typo-squatting.
- Respondent has registered and is using the disputed domain names in bad faith. Respondent registered the names two years after Complainant’s registration of its service mark, meaning that Respondent had either actual or at least constructive knowledge of Complainant’s rights, which Respondent disregarded in bad faith. Furthermore, Respondent is using the confusing similarity between the disputed domain names and Complainant’s marks to falsely suggest to the public Complainant’s affiliation or sponsorship of Respondent’s resulting web site. Finally, Complainant is attempting to unfairly benefit from the goodwill created by Complainant in its marks.
B. Respondent
- Prior to filing this Response, Respondent attempted unsuccessfully to transfer the disputed domain name to Complainant without recourse to completion of the present proceeding. Thus, without admitting the validity of Complainant’s contentions with respect to the elements of paragraph 4(a) of the Policy, Respondent consents to the transfer to Complainant of the disputed domain name.
FINDINGS
Complainant and Respondent agree to the transfer of the disputed domain names, <edfinancil.com> and <edfinancal.com>, to Complainant.
DISCUSSION
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;
(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.
Since Respondent has agreed to Complainant’s request that the disputed domain names be transferred to Complainant, there is no dispute in this case to be resolved. Moreover, there is no evidence before the Panel to suggest that Respondent’s agreement to that transfer is not genuine. Therefore, the Panel will neither analyze contentions nor render findings pursuant to paragraph 4(a) of the Policy, but will instead direct that such a transfer be effected without further ado. See, for example, Boehringer Ingelheim Int’l GmbH v. Modern Ltd. – Cayman Web Dev., FA 133625 (Nat. Arb. Forum Jan. 9, 2003); Mary Frances Accessories, Inc. v. Shoe Salon, FA 528458 (Nat. Arb. Forum Sept. 6, 2005); and Cartoon Network LP, LLLP v. Morgan, D2005-1132 (WIPO Jan. 5, 2006) (“…a genuine unilateral consent to transfer by the Respondent provides a basis for an immediate order for transfer without consideration of the paragraph 4(a) elements. 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.”).
DECISION
Pursuant to the foregoing, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <edfinancil.com> and <edfinancal.com> domain names be TRANSFERRED from Respondent to Complainant.
Dennis A. Foster,
Panelist
Dated: January 29, 2008
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