AOL LLC v. Global Access c/o domain admin
Claim Number: FA0911001294098
Complainant is AOL LLC (“Complainant”), represented by James R. Davis, of Arent Fox LLP,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <mapqeust.com>, registered with Fabulous.com Pty Ltd.
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 November 11, 2009; the National Arbitration Forum received a hard copy of the Complaint on November 12, 2009.
On November 11, 2009, Fabulous.com Pty Ltd. confirmed by e-mail to the National Arbitration Forum that the <mapqeust.com> domain name is registered with Fabulous.com Pty Ltd. and that the Respondent is the current registrant of the name. Fabulous.com Pty Ltd. has verified that Respondent is bound by the Fabulous.com Pty Ltd. 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 November 16, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of December 7, 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 firstname.lastname@example.org by e-mail.
A timely Response was received and determined to be complete on December 7, 2009.
On December 10, 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
Complainant alleges, among other things, that:
Complainant owns the marks MAPQUEST and MAPQUEST.COM, which are used in connection with, among other things, providing services and general interest information to the public on the Internet.
Complainant owns numerous trademark registrations for its MAPQUEST marks, including U.S. Registration No. 2,129,378 and Australian Registration No. 793155.
Complainant also owns numerous trademark registrations for its MAPQUEST.COM mark, including U.S. Registration Nos. 2523221 and 2523220, and Australian Reg. No. 793156.
The disputed domain name is confusingly similar and nearly identical to Complainant’s MAPQUEST and MAPQUEST.COM marks.
Respondent registered and uses the <mapqeust.com> domain name for the bad faith purpose of profiting from the goodwill Complainant has created in its MAPQUEST brand and mark by confusing and misleading unknowing consumers to Respondent’s commercial Web site which provides links to third party sites that compete with the business of Complainant and its MAPQUEST service.
Respondent is not licensed or otherwise authorized to register or use domain names that are confusingly similar or nearly identical to the MAPQUEST marks.
Respondent has no rights to or legitimate interests in respect to the <mapqeust.com> domain name.
Respondent registered the disputed domain name in bad faith and with actual knowledge of Complainant’s MAPQUEST marks and services.
Respondent alleges, among other things, that:
Respondent did not register or use the subject domain name in bad faith.
Respondent further recites as follows: “Respondent has no desire to retain the Domain Name … [and] … Respondent desires to transfer the Domain Name to Complainant.”
PRELIMINARY ISSUE: DEFICIENT RESPONSE
Respondent’s Response was not received by the National Arbitration Forum as a complete FAX copy prior to the Response deadline established under the Policy. Thus the Response is not in full compliance with ICANN Rule 5, which subjects Respondent to treatment as a defaulting party. See Six Continents Hotels, Inc. v. Nowak, D2003-0022 (WIPO Mar. 4, 2003) (holding that a respondent’s failure to submit a hard copy of a response and its failure to include with it any evidence to support a finding in its favor placed that respondent in default of the Policy’s requirements, permitting a panel to draw all appropriate inferences stated in the initiating complaint). However, the Panel may, in its discretion, choose to accept and consider such a Response for whatever value it may have. See J.W. Spear & Sons PLC v. Fun League Mgmt., FA 180628 (Nat. Arb. Forum Oct. 17, 2003) (finding that, where a respondent timely submitted a response electronically, but failed to submit a hard copy of the response timely, “[t]he Panel is of the view that given the technical nature of the breach and the need to resolve the real dispute between the parties that this submission should be allowed and given due weight”). In light of all of the circumstances here presented, the Panel elects to accept the Response as filed, and, in the interests of justice, to give it full consideration as if it had been filed compliantly.
Paragraph 4(a) of the Policy requires that, in the ordinary course, Complainant must prove each of the following to obtain from a Panel an order 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. Arb. Forum Jan. 13, 2004; see also Disney Enterprises, Inc. v. Morales, FA 475191 (Nat. Arb. Forum Jun. 24, 2005)).
Respondent’s Response does not contest the material allegations of the Complaint, except as to Complainant’s assertion of bad faith registration and use of the subject domain name, which it denies. In particular, Respondent does not contest Complainant’s request that the disputed domain name be transferred to Complainant. Rather Respondent expressly consents to such transfer. 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.
Accordingly, it is Ordered that the <mapqeust.com> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: December 23, 2009
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