Texas Custom Pools, Inc. d/b/a Riverbend Sandler Pools v. Texas Custom Pools, Inc.
Claim Number: FA1301001482516
Complainant is Texas Custom Pools, Inc. d/b/a Riverbend Sandler Pools (“Complainant”), represented by Kenton J. Hutcherson of Hutcherson Law, Texas, USA. Respondent is Texas Custom Pools, Inc. (“Respondent”), Texas, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <riverbendsandlerpools.com>, registered with DOMAIN.COM, LLC.
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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on January 29, 2013; the National Arbitration Forum received payment on January 29, 2013.
On January 29, 2013, DOMAIN.COM, LLC confirmed by e-mail to the National Arbitration Forum that the <riverbendsandlerpools.com> domain name is registered with DOMAIN.COM, LLC and that Respondent is the current registrant of the name. DOMAIN.COM, LLC has verified that Respondent is bound by the DOMAIN.COM, LLC 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 February 1, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 21, 2013 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@riverbendsandlerpools.com. Also on February 1, 2013, 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.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On March 1, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
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" 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, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
Complainant
1. Complainant claims that it has rights in the RIVERBEND SANDLER POOLS mark through common law trademark rights.
2. Complainant’s RIVERBEND SANDLER POOLS mark has acquired secondary meaning among local consumers.
3. Complainant has continuously and extensively promoted its business under its RIVERBEND SANDLER POOLS mark since September 25, 2003.
4. Complainant previously held the registration for the <riverbendsandlerpools.com> domain name for ten years previous to Respondent’s claims of ownership.
5. Respondent’s <riverbendsandlerpools.com> domain name is identical to Complainant’s RIVERBEND SANDLER POOLS mark.
6. Respondent has no rights or legitimate interests in the <riverbendsandlerpools.com> domain name.
7. Respondent has never been commonly known by Complainant’s mark.
8. Respondent is using the <riverbendsandlerpools.com> domain name to display a commercial search engine, which if clicked, resolve to a page featuring pay-per-click links competing with Complainant’s business.
9. The disputed domain name is likely to cause confusion as to the affiliation, connection, or association of Respondent with Complainant.
10. Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services, and has no legitimate noncommercial or fair use of the <riverbendsandlerpools.com> domain name.
11. Respondent has registered and is using the <riverbendsandlerpools.com> domain name in bad faith.
12. Respondent is attempting to attract, for commercial gain, Internet users to Respondent’s website, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website.
13.Complainant contends that the WHOIS information is incorrect, and that the true registration date for the disputed domain name is December 4, 2012 when the information changed to reflect Complainant’s name.
RESPONDENT IDENTIFICATION
Complainant and Respondent are the same entities. Complainant alleges it does not have control over the disputed domain name. Complainant believes that the accurate information for Respondent is “c/o Riverbendsandlerpools.com” with an address located in Vancouver, Washington.
The current WHOIS information shows Texas Custom Pools, Inc., who is both Complainant and Respondent, to be the registrant of the disputed domain name. The proper respondent in a domain proceeding is the holder (registrant) of the domain name registration at the time of the filing of the Complaint. Rules 1 & 3(b)(v), UDRP; NAF Supp Rule 1(d). So, in this proceeding, uniquely, the Complainant and Respondent are the same, Texas Custom Pools, Inc. Yet, Texas Custom Pools, Inc. has lost some control of the domain name. However, in this proceeding, Texas Custom Pools, Inc., who is the holder of the domain name, has requested the transfer of the domain name to itself as Complainant. Where Respondent has consented to the transfer of the disputed domain name, the Panel may decide to forego the traditional UDRP analysis and order the immediate transfer of the domain name. See Boehringer Ingelheim Int’l GmbH v. Modern Ltd. – Cayman Web Dev., FA 133625 (Nat. Arb. Forum Jan. 9, 2003) (transferring the domain name registration where the respondent stipulated to the transfer). As record holder of the domain name, Texas Custom Pools, Inc. has sufficient control over the domain name to consent to or request the transfer of the domain name. Therefore, the Panel foregoes the traditional UDRP analysis and orders the transfer of the disputed domain name to Complainant.
Accordingly, it is Ordered that the <riverbendsandlerpools.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: March 15, 2013
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