AutoZone Parts Inc. v. Dan Averbukh d/b/a Analyst Post
Claim Number: FA0910001288879
Complainant is AutoZone Parts Inc. (“Complainant”), represented by Kitty
Bina, of Alston & Bird LLP,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <autozone.mobi>, registered with GoDaddy.com.
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.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on October 12, 2009; the National Arbitration Forum received a hard copy of the Complaint on October 13, 2009.
On October 12, 2009, GoDaddy.com confirmed by e-mail to the National Arbitration Forum that the <autozone.mobi> domain name is registered with GoDaddy.com and that Respondent is the current registrant of the name. GoDaddy.com has verified that Respondent is bound by the GoDaddy.com 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 15, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of November 4, 2009 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@autozone.mobi by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On November 11, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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:
Complainant is a leading retailer and distributor of automotive parts and accessories.
Complainant owns trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the AUTOZONE trademark (e.g., Reg. No. 1,700,101, issued July 14, 1992).
Respondent registered the <autozone.mobi> domain name on September
26, 2006.
Respondent’s disputed domain name resolves to a website displaying third-party links to websites offering automotive replacement parts and accessories in competition with the business of Complainant.
Respondent’s <autozone.mobi> domain name is confusingly similar to Complainant’s AUTOZONE mark.
Respondent does not have any rights to or legitimate interests in the <autozone.mobi> domain name.
Respondent registered and uses the <autozone.mobi> domain name in bad faith.
B. Respondent failed to submit a compliant Response in this proceeding. However, in e-mail correspondence with staff of the National Arbitration Forum, Respondent declared as follows: “I will give the domain to …[Complainant]…. I will give it to them for free.”
DISCUSSION
Paragraph 4(a) of the Policy requires that, in the ordinary course, Complainant must prove each of the following in order to obtain from a Panel a decision that a domain name be transferred to it:
i.
the
domain name registered by Respondent is identical or confusingly similar to a
trademark or service mark in which Complainant has rights;
ii.
Respondent
has no rights to or legitimate interests in respect of the domain name; and
iii.
the domain name
has been registered and is being used in bad faith.
Notwithstanding the
foregoing, 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.”
Further, Policy ¶ 3(a) provides for the transfer of a domain name registration upon the written instructions of the parties to a UDRP proceeding without the need for otherwise required findings and conclusions (see Malev Hungarian Airlines, Ltd. v. Vertical Axis Inc., FA 212653 (Nat. Ar. Forum Jan. 13, 2004; see also Disney Enterprises, Inc. v. Morales, FA 475191 (Nat. Arb. Forum Jun. 24, 2005)).
DECISION
Respondent’s Response does not contest the material allegations of the Complaint, and, in particular it does not contest Complainant’s request that the disputed domain name be transferred to Complainant. Rather, Respondent has declared in writing its consent that the domain be transferred to Complaint. Thus the parties have effectively agreed in writing to a transfer of the subject domain name from Respondent to Complainant without the need for further proceedings.
It is therefore Ordered that the <autozone.mobi> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: November 25, 2009
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