Ultimate Ears, LLC v.
Claim Number: FA0806001211107
PARTIES
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.
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.
Calvin A. Hamilton as Panelist.
PROCEDURAL HISTORY
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 postmaster@ultimatears.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.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. 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.
B. Respondent
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
[…]”
FINDINGS
The Panel will not make any findings of fact,
for the reasons explained below.
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.”
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.”).
DECISION
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