LKN Communications, Inc. d/b/a ACN, Inc. v. Long Beach Technology
Claim Number: FA0911001295449
Complainant is LKN Communications, Inc. d/b/a ACN, Inc. (“Complainant”), represented by Henry B. Ward, III, of Moore & Van Allen PLLC, North Carolina, USA. Respondent is Long Beach Technology (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <myacnvideophones.com>, registered with Godaddy.com, Inc.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Calvin A. Hamilton as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on November 19, 2009; the National Arbitration Forum received a hard copy of the Complaint on November 20, 2009.
On November 19, 2009, Godaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <myacnvideophones.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 November 23, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of December 14, 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 email@example.com by e-mail.
A timely Response was received and determined to be complete on December 1, 2009.
On December 7, 2009, pursuant to Complainant’s request to have the dispute decided by a single-member Panel and in light of Respondent’s failure to object to a single-member Panel, the National Arbitration Forum appointed Calvin A. Hamilton as Panelist.
Complainant requests that the domain name be transferred from Respondent to Complainant.
Complainant contends that it has acquired a protectable interest in the ACN mark, as the world’s largest direct selling telecommunications service provider and distributor of video phones. Complainant has provided evidence that it owns 5 trademark registration variations of the ACN mark. Complainant contends that: (1) Respondent’s <myacnvideophones.com> domain name is confusingly similar to Complainant’s ACN Mark, (2) Respondent has no rights or legitimate interest in the domain name and (3) Respondent has registered and used the domain name in bad faith.
Respondent has expressly agreed to transfer the domain name to Complainant and requests that this be done immediately. Respondent has further stated that it wishes to refrain from participating in the ICANN arbitration procedures and notes that the first notice of Complainant’s interest in the disputed domain name was the notification of the Complaint. Respondent notes that it acquired the domain name with the purpose of assisting in the sale of Complainant’s products as an independent representative, but that he opted not to join Complainant as an independent representative. Respondent therefore agrees to the transfer of the domain name.
However, Respondent is unable to transfer the disputed domain name to Complainant after the initiation of the ICANN procedure because GoDaddy.com, Inc, the registrar of the domain name has placed a hold on Respondent’s account. This hold will be in place until the resolution of this procedure.
Given that Respondent has not contested the transfer of the domain name in question and that Respondent has specifically requested that the domain name be transferred this Panel recognizes that it is obliged to follow the will of the parties. See Malev Hungarian Airlines, Ltd. v. Vertical Axis Inc., FA 212653 (Nat Arb. Forum Jan. 13, 2004). The right to consent to the will of the parties has been acknowledged by previous ICANN panels. See Boehringer Ingelheim Int’l GmbH v. Modern Ltd. – Cayman Web Dev., FA 133625 (Nat. Arb. Forum Jan. 9, 2003); see also Disney Enters., Inc. v. Morales, FA 475191 (Nat. Arb. Forum June 24, 2005). Given that the will of both parties is to transfer the domain name to Complainant this Panel finds that in the interests of efficiency, expediency and the mutual consent of the parties, that it should forego the UDRP analysis and therefore order the transfer of the domain name to Complainant.
Accordingly, it is Ordered that the <myacnvideophones.com> domain name be TRANSFERRED from Respondent to Complainant.
Calvin A. Hamilton, Panelist
Dated: December 18, 2009
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