Office Depot, Inc. v. KooNames
Claim Number: FA1302001483755
Complainant is Office Depot, Inc. (“Complainant”), represented by Paul D. McGrady of Winston & Strawn, Illinois, USA. Respondent is KooNames (“Respondent”), Oregon, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <officedep0t.com>, registered with GoDaddy.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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on February 5, 2013; the National Arbitration Forum received payment on February 6, 2013.
On February 6, 2013, GoDaddy.com, LLC confirmed by e-mail to the National Arbitration Forum that the <officedep0t.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.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 6, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 26, 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@officedep0t.com. Also on February 6, 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 11, 2013 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.
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.
A. Complainant
1. Complainant possesses rights for the use of the OFFICE DEPOT marks by way of United States Patent & Trademark Office (“USPTO”) registrations. See Reg. No. 1,449,065 registered on July 21, 1987.
2. Respondent’s <officedep0t.com> domain name is confusingly similar to the OFFICE DEPOT mark. Respondent has merely replaced the letter “o” in depot with the number “0.” This typo is especially confusing given both the similarity between the letter “o” and the number “0” and the two characters relative proximity on the ordinary keyboard.
3. Respondent is not now nor has it ever been commonly known by the <officedep0t.com> domain name. There is no evidence to suggest otherwise. Complainant has never authorized or permitted Respondent to use domain names that are confusingly similar to the OFFICE DEPOT mark.
4. Respondent has never made a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain name. Respondent is using the domain name to resolve to Complainant’s own <officedepot.com> domain name, presumably for “nefarious purposes.”
5. Respondent’s use of the disputed domain name in an attempt to redirect Internet users to Complainant’s own website constitutes bad faith.
6. Respondent has engaged in typosquatting through its using of a domain name that embodies an easily-made error to the spelling of the OFFICE DEPOT mark.
7. Respondent was undoubtedly aware of the OFFICE DEPOT mark. This can be in the form of constructive knowledge of Complainant’s registration, or by Respondent’s actual knowledge in electing to have this domain name resolve to Complainant’s own website.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Respondent has consented to the transfer of the domain name.
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."
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Preliminary Issue: Consent to Transfer
The National Arbitration Forum received a communication from Respondent in which the Respondent stated “I have no use” for the domain name. “I could delete the registration.” The Panel interprets this statement as consent to the transfer of the <officedep0t.com> domain name.
Although Respondent consented to transfer the <officedep0t.com> domain name to Complainant, after the initiation of this proceeding, GoDaddy.com, LLC placed a hold on Respondent’s account and therefore Respondent cannot transfer the disputed domain name while this proceeding is still pending. Because Respondent has not contested the transfer of the disputed domain name but instead agrees to transfer the domain name in question to Complainant, the Panel has decided to forego the traditional UDRP analysis and order an immediate transfer of the <officedep0t.com> 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); 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 or of compliance (or not) with the Policy.”); Disney Enters., Inc. v. Morales, FA 475191 (Nat. Arb. Forum June 24, 2005) (“[U]nder such circumstances, where Respondent has agreed to comply with Complainant’s request, the Panel felt it to be expedient and judicial to forego the traditional UDRP analysis and order the transfer of the domain names.”).
As the Respondent has consented to the transfer of the domain name, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <officedep0t.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: March 21, 2013
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