Roto-Rooter Corporation v. Dancing Horse Productions
Claim Number: FA1108001405132
Complainant is Roto-Rooter Corporation (“Complainant”), represented by Theodore R. Remaklus of Wood, Herron & Evans, LLP, Ohio, USA. Respondent is Dancing Horse Productions (“Respondent”), Florida, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <floridarotorooter.com>, registered with GoDaddy.com, Inc.
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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on August 29, 2011; the National Arbitration Forum received payment on August 29, 2011.
On August 29, 2011, GoDaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <floridarotorooter.com> domain name is registered with GoDaddy.com, Inc. and that 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 disputes brought by third-parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On August 30, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 19, 2011 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@floridarotorooter.com. Also on August 30, 2011, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
On September 22, 2011, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Bruce E. Meyerson as Panelist.
Respondent’s Response was received on September 26, 2011, after the Response deadline. Thus, the National Arbitration Forum does not consider the Response to be in compliance with ICANN Rule 5. However, the Panel, in its discretion, chooses to accept and consider this Response. See Six Continents Hotels, Inc. v. Nowak, D2003-0022 (WIPO Mar. 4, 2003) (holding that the respondent’s failure to submit a hard copy of the response and its failure to include any evidence to support a finding in its favor placed the respondent in a de facto default posture, permitting the panel to draw all appropriate inferences stated in the complaint); see also J.W. Spear & Sons PLC v. Fun League Mgmt., FA 180628 (Nat. Arb. Forum Oct. 17, 2003) (finding that where respondent submitted a timely response electronically, but failed to submit a hard copy of the response on time, “[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”).
Having reviewed the communications records, 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" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <floridarotorooter.com> domain name is confusingly similar to Complainant’s ROTO-ROOTER mark.
2. Respondent does not have any rights or legitimate interests in the <floridarotorooter.com> domain name.
3. Respondent registered and used the <floridarotorooter.com> domain name in bad faith.
B. Respondent consents to the transfer of the domain name.
Complainant, Roto-Rooter Corporation, provides plumbing and drain cleaning services in North America. Complainant has used the ROTO-ROOTER mark as a part of its business since as early as 1934. Complainant owns numerous trademark registrations with the United States Patent and Trademark Office (“USPTO”) for its ROTO-ROOTER mark (e.g., Reg. No. 597,721 registered November 2, 1954).
Respondent, Dancing Horse Productions, registered the <floridarotorooter.com> domain name on March 22, 2010. The disputed domain name resolves to a website that promotes Respondent’s competing plumbing and drain cleaning services.
In its Response, the Respondent has stipulated to transfer the <floridarotorooter.com> domain name to the Complainant. Therefore, a summary disposition of this proceeding may be done without the formal analysis generally required under the Policy and Rules.
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."
Respondent consents to transfer the <floridarotorooter.com> domain name to Complainant. Where Respondent has not contested transfer and has stipulated that the transfer be made by this Panel, the Panel is authorized to forego the traditional UDRP analysis and order an immediate transfer of the <floridarotorooter.com> domain name. See Boehringer Ingelheim GmbH v. Modern Ltd, Cayman Web Dev., FA 133625 (Nat. Arb Forum Jan. 9, 2003) (transferring the domain name registration where 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 of compliance (or not) with the Policy.”)
Respondent having stipulated to the transfer of the domain name and the stipulation being permissible under ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <floridarotorooter.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: October 5, 2011
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