Homer TLC, Inc. v. John Hudson
Claim Number: FA1308001515520
Complainant is Homer TLC, Inc. (“Complainant”), represented by Brandon M. Ress of Fulbright & Jaworski L.L.P., Texas, USA. Respondent is John Hudson (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <hamptonbayonline.com>, registered with GODADDY.COM, LLC.
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on August 19, 2013; the National Arbitration Forum received payment on August 19, 2013.
On August 20, 2013, GODADDY.COM, LLC confirmed by e-mail to the National Arbitration Forum that the <hamptonbayonline.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 August 21, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 10, 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@hamptonbayonline.com. Also on August 21, 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.
A timely Response was received and determined to be complete on September 6, 2013.
On September 17, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Richard Hill 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
The Complainant alleges that it is the owner of the distinctive and well-known HAMPTON BAY trademark, used in connection with lighting fixtures, ceiling fans, and air conditioners at least as early as 1986 in the USA and abroad. The mark is used in particular for products sold by the Complainant’s licensee and distributor Home Depot.
According to the Complainant, the disputed domain name is confusingly similar to its mark. The Complainant cites UDRP precedents to support its position.
The Complainant states that the Respondent has not been licensed or otherwise authorized to use its mark, that he has not been commonly known by the disputed domain name and that he is not using the disputed domain name in good faith in connection with a bona fide offering of goods or services. On the contrary, the disputed domain name resolves to a web site that contains numerous sponsored advertisements, including to products that compete with the Complainant’s products. This is not a bona fide offering of goods or services under the Policy. The Complainant cites UDRP precedents to support its position.
According to the Complainant, the Respondent’s use of the disputed domain name is concrete evidence of bad faith registration and use: the Respondent is using the disputed domain name to direct Internet users to a website with links and sponsored ads that direct visitors to goods and services that compete with the Complainant’s products. The Complainant cites UDRP precedents to support its position.
B. Respondent
The Response states, verbatim:
I would like to resolve this issue by transferring the domain to Home Depot. I regret deeply for any inconvenience caused.
The panel will not make any findings of fact, for the reasons explained below.
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.
For the reasons set forth below, the Panel will not analyze the three elements of the Policy.
The Respondent consents to transfer the disputed domain name to the Complainant. The Panel notes that the Respondent refers to the Complainant’s distributor Home Depot; however, the Complaint stresses that the Complainant’s products are sold by its licensee Home Depot, thus the reference by the Respondent to Home Depot must be understood as a reference to the owner of the trademark. In such cases, previous panels have decided to forego the traditional UDRP analysis and to order an immediate transfer of the disputed 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.”); see also 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.”).
The Panel holds that this approach is valid for the present case, so the disputed domain name should be transferred without making any findings of fact or of compliance (or not) with the Policy.
Given the common request of the parties, it is Ordered that the <hamptonbayonline.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: September 18, 2013
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