Ashley Furniture Industries,
Inc. v. Jack Brosseit
Claim Number: FA0810001228455
PARTIES
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.
PANEL
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.
PROCEDURAL HISTORY
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 postmaster@furnitureashley.com 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.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. 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.
B. Respondent
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.”
FINDINGS
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
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 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.”).
DECISION
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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