Ashley Furniture Industries, Inc. v. Jack Brosseit
Claim Number: FA0810001228455
Complainant is Ashley Furniture Industries, Inc. (“Complainant”), represented by Terrence
J. Madden, of Kostner, Koslo & Brovold LLC,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <furnitureashley.com>, registered with Godaddy.com, Inc.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Linda M. Byrne as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on October 8, 2008; the National Arbitration Forum received a hard copy of the Complaint on October 9, 2008.
On October 9, 2008, Godaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <furnitureashley.com> domain name is registered with Godaddy.com, Inc. and that the Respondent is the current registrant of the name. Godaddy.com, Inc. has verified that Respondent is bound by the Godaddy.com, 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 October 10, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of October 30, 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 Response was received on October 21, 2008. Respondent failed to provide a hard copy as specified in ICANN Supplemental rule #5(a).
On October 24, 2008, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Linda M. Byrne as Panelist.
Complainant requests that the domain name be transferred from Respondent to Complainant.
Complainant contends that Respondent’s domain name <furnitureashley.com> is confusingly similar to its trademark ASHLEY FURNITURE; that Respondent does not have any rights or legitimate interests with respect to the domain name; and that the domain name was registered and used by Respondent in bad faith. Complainant argues that Respondent’s bad faith is demonstrated by the <furnitureashley.com> website, which links to various businesses, including competitors of Complainant.
The Response states, “I once had a furniture store and we sold Ashley Furniture in that store. I have closed that store but hoped to some day re-open a furniture store and again sell Ashley Furniture. I thought that furnitureashley.com might drive more business to my store and I would sell more of the Ashley line of furniture. Once again let me say that Ashley Furniture can have this domain name and I apologize for any trouble this has caused.”
The rules require that the Response be submitted in both electronic and hard copy form. Although Respondent’s electronic submission was received in a timely manner, Respondent failed to submit a hard copy as required by ICANN Rule 5. In this type of situation, 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 may decide 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.”). In this case, the Panel has chosen in its discretion to fully consider the Response.
Complainant is the
recorded owner for several
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 the 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 the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(2) the 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.
As noted above, the Respondent stated in his Response that “Ashley Furniture can have this domain name…” Respondent has therefore consented to transfer of the <furnitureashley.com> domain name to Complainant. However, after the initiation of this proceeding, GoDaddy.com Inc., placed a hold on Respondent’s account and therefore Respondent cannot transfer the disputed domain name while this proceeding is still pending.
In a circumstance such as this, where Respondent has not contested the transfer of the disputed domain name but instead agrees to transfer the domain name in question to Complainant, this Panel has decided to forego the traditional UDRP analysis and order an immediate transfer of the <furnitureashley.com> 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.”).
Having established that both parties consent to a transfer of the <furnitureashley.com> domain name under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <furnitureashley.com> domain name be TRANSFERRED from Respondent to Complainant.
Linda M. Byrne, Panelist
Dated: November 7, 2008
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