Sotheby's v. Touringpartner Records
Claim Number: FA0805001190172
Complainant is Sotheby's (“Complainant”), represented by Sujata
Chaudhri, of Cowan, Liebowitz & Latman, P.C.,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <sothebysrealestates.com>, registered with Wild West Domains, Inc.
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.
Clive Elliott as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on May 13, 2008; the National Arbitration Forum received a hard copy of the Complaint on May 14, 2008.
On May 13, 2008, Wild West Domains, Inc. confirmed by e-mail to the National Arbitration Forum that the <sothebysrealestates.com> domain name is registered with Wild West Domains, Inc. and that the Respondent is the current registrant of the name. Wild West Domains, Inc. has verified that Respondent is bound by the Wild West Domains, Inc. 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 May 15, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of June 4, 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 firstname.lastname@example.org by e-mail.
A timely Response was received by e-mail on June 4, 2008. However, the Response was deemed deficient pursuant to Supplemental Rule 5 because a hard copy was not received prior to the Response deadline. Nevertheless, the Response does contain information relevant to this Complaint and notwithstanding the procedural deficiency, for the reasons set out below, the Panel allows the Response to be admitted and has taken it into account in reaching a decision.
On June 12, 2008, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Clive Elliott as Panelist.
Complainant requests that the domain name be transferred from Respondent to Complainant.
Complainant asserts that it and its predecessors, through their
affiliated companies and licensees, have been engaged in the auction business
since 1744 and have developed a reputation as a premier auction house for the
sale of jewelry, fine art and other collectibles. Complainant further asserts that it has been
engaged in the business of selling fine real estate properties in a range of
locations, prices and distinctive styles for more than 25 years. These real estate services are provided
around the world, including
Complainant states that it owns trademark and service mark
registrations and applications of the SOTHEBY’S mark and marks that incorporate
the SOTHEBY’S mark in more than 60 countries around the world including
Complainant states further that through its affiliate companies it has operated internet websites located at <sothebys.com>, <sothebysrealty.com> and <sothebysinternationalrealty.com>. These domain names were first registered in 1994, 1997 and 1999 respectively.
Complainant asserts that Respondent is not using the domain name in connection with any bona fide offering of goods and services and that the domain name resolves to a website that has links to commercial websites. Complainant submits that Respondent is likely to be receiving click-through fees from its use of the domain name to provide links to third-party websites. It submits that this is not a bona fide offering of goods or under Policy 4(c)(i) nor a legitimate non-commercial or fair use under Policy 4(c)(iii).
Finally, Complainant asserts that on April 18, 2008, Complainant, through its attorneys offered to purchase the domain name from Respondent for US$60 and that its attorneys received a counter offer of US $200,000 from Respondent. It submits that Respondent’s counter offer for an amount that far exceeds its out-of-pocket expenses relating to the disputed domain name is evidence of Respondent’s bad faith.
In reply, Respondent states that he is a social welfare beneficiary
Respondent advises that he wished to settle this matter before it came before a panel and that he never intended to use Sotheby’s reputation to build his own business. Respondent asserts that he has made his intentions known to Complainant and questions why the Complaint is being pursued.
Respondent does not contest any of Complainant’s allegations regarding the <sothebysrealestates.com> domain name. Rather, Respondent has expressly or impliedly consented to judgment in favor of Complainant and authorized the immediate transfer of the subject domain name.
For the reasons set out below the Panel is of the view that by virtue of Respondent’s consent to or failure to oppose the transfer of the disputed domain name that relief be granted and the disputed domain name transferred to Complainant.
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 sets out three elements that need to be proved under the Policy. However, for the reasons set out below, such analysis is not required in this case.
As noted above, although Respondent’s electronic submission was received in a timely manner, it failed to submit a hard copy as required by ICANN Rule 5. Therefore the Panel has sole discretion as to the amount of weight given to the Response. 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 does however have a discretion to accept the Response. See Bd. of Governors of the Univ. of Alberta v. Katz, D2000-0378 (WIPO June 22, 2000) (finding that a panel may consider a response which was one day late, and received before a panelist was appointed and any consideration made); see also 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.”).
While certain panels have declined to accept non-complying submissions or evidence this is a situation where the e-mail communication with the Forum is both directly relevant and before the parties and the Panel. For this reason it is admitted and taken into account by the Panel.
Consent or Absence of Opposition to Transfer the Subject Domain Name
Respondent’s Response clearly indicates that Respondent has no legitimate interest in the domain name. The Panel finds that Respondent does not contest any of Complainant’s allegations regarding the <sothebysrealestates.com> domain name. Rather, Respondent has, at least by implication consented to judgment in favor of Complainant.
The Panel finds that in a circumstance such as this, where Respondent has consented to or not opposed the transfer of the disputed domain name, it should forego the traditional UDRP analysis and order the immediate transfer of the 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.”).
Having so found the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <sothebysrealestates.com> domain name be TRANSFERRED from Respondent to Complainant.
Dated: June 26, 2008
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