Ultimate Ears, LLC v.
Claim Number: FA0806001211107
Complainant is Ultimate
Ears, LLC (“Complainant”),
represented by Monique M. Heyninck,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <ultimatears.com>, registered with Compana, 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.
Calvin A. Hamilton as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on June 19, 2008; the National Arbitration Forum received a hard copy of the Complaint on June 20, 2008.
On June 30, 2008, Compana, LLC confirmed by e-mail to the National Arbitration Forum that the <ultimatears.com> domain name is registered with Compana, LLC and that the Respondent is the current registrant of the name. 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 July 2, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of July 22, 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 email@example.com by e-mail.
A timely Response was received and determined to be complete on July 22, 2008.
On July 29, 2008, 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.
Complainant asserts rights in the ULTIMATE EARS mark. Complainant holds a trademark registration with the United States Patent and Trademark Office for the ULTIMATE EARS mark (Reg. No. 2,975,441 issued July 26, 2005). Complainant has exclusively used its trademarks since September 30, 1995, in connection with audio conduit, amplification and monitoring units, acoustic separation units, audio mixers, and custom manufacture of audio conduit, amplification and monitoring devices and acoustic separation devices.
On October 28, 2005, Respondent registered the domain name <ultimatears.com>. More than two years after registering the domain name, Respondent still has not developed a website for the domain name. The domain name currently resolves to an advertising directory page with links to a variety of advertising portals or individual advertisers, including retailers offering electronic products that compete with those of Complainant.
Complainant alleges Respondent has registered the disputed domain name as a means to misdirect Internet users searching for Complainant’s mark and related products of Complainant to a third-party links page from which Respondent financially gains.
Additionally, Complainant contends that the disputed domain name disrupts Complainant’s business.
Complainant further contends that Respondent has been the respondent in numerous UDRP proceedings where the disputed domain names have been transferred from Respondent to the complainants in these cases.
Respondent requests that the Panel order the immediate transfer of the disputed domain name. Respondent does not dispute the factual allegations raised in the Complaint but states that its agreement “to the relief requested by the Complainant […] is not an admission to the three elements of 4(a) of the policy […]”
The Panel will not make any findings of fact, for the reasons explained below.
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.”
In this case, both parties have requested that the domain name be transferred from Respondent to Complainant. In accordance with a general legal principle governing arbitrations as well as national court proceedings, the Panel holds that it cannot issue a decision that would be either less than requested, nor more than requested by the parties. 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 UDRP Policy. 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.”).
Given the common request of the Parties, it is Ordered that the <ultimatears.com> domain name be TRANSFERRED from Respondent to Complainant.
Calvin A. Hamilton, Panelist
Dated: August 12, 2008