Wyse Technology Inc. v. wyseforgottorenewthedomainname c/o David Zuo
Claim Number: FA0810001230810
Complainant is Wyse Technology Inc. (“Complainant”), represented by Farah
P. Bhatti, of McDermott Will & Emery LLP,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <wysetech.com>, registered with Key-Systems Gmbh.
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.
Judge Ralph Yachnin as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On October 28, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of November 17, 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.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <wysetech.com> domain name is confusingly similar to Complainant’s WYSE mark.
2. Respondent does not have any rights or legitimate interests in the <wysetech.com> domain name.
3. Respondent registered and used the <wysetech.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant promotes and sells computer hardware and
software under the WYSE mark, which Complainant registered with the United
States Patent and Trademark Office (“USPTO”) on
Respondent holds the registration of the <wysetech.com> domain name. The disputed domain name does not currently resolve to a website; it previously resolved to a website that states “[i]t is the awfulest thing that the company forgot to renew their domain name,” and then offers to return the disputed domain name to Complainant. Respondent has not actually canceled its registration of the disputed domain name or transferred the domain name to Complainant, but did state that the domain name was “registered by one of our clients for future business. If you are interested in the domain name or business cooperation, you can contact us . . .”
Paragraph 15(a) of 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 view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Paragraph 4(a) of the Policy requires that 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 Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) 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.
Preliminary Issue: Other Correspondence Indicates Consent to Transfer the Subject Domain Name
Respondent did not submit an official response in this
case. However, the National Arbitration
Forum was copied on documentation submitted from Respondent to Complainant. In this document, Respondent purports to
consent to the transfer of the <wysetech.com>
domain name. After the initiation of this proceeding, the
registrar, Key-Systems Gmbh, placed a hold on Respondent’s account and
therefore Respondent cannot transfer the disputed domain name while this
proceeding is still pending. The
Panel finds that in a circumstance such as this, where Respondent has consented
to the transfer of the disputed domain name, the Panel may and has decided to
forego the traditional UDRP analysis and order the immediate transfer of the <wysetech.com> domain name. See Boehringer Ingelheim Int’l GmbH v.
Modern Ltd. – Cayman Web Dev., FA 133625 (Nat. Arb. Forum
Since Respondent has not contested the elements of the UDRP and has instead agreed to transfer the disputed domain name to Complainant, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <wysetech.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated: December 31, 2008
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