Vivint, Inc. v. Robert Kim / Ezekiel Building Systems LLC
Claim Number: FA1409001578449
Complainant is Vivint, Inc. (“Complainant”), represented by J. Dustin Howell of Workman Nydegger, Utah, USA. Respondent is Robert Kim / Ezekiel Building Systems LLC (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <vivint365.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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on September 5, 2014; the National Arbitration Forum received payment on September 5, 2014.
On September 5, 2014, GODADDY.COM, LLC confirmed by email to the National Arbitration Forum that the <vivint365.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 September 8, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 29, 2014 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@vivint365.com. Also on September 8, 2014, the Written Notice of the Complaint, notifying Respondent of the email 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. The Forum received an email message from Respondent on October 2, 2014, acknowledging the notification.
On October 2, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed David E. Sorkin 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 a formal response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant is one of the largest home security and automation companies in the world. Complainant adopted the VIVINT mark for its services in late 2010, and asserts that it has built up considerable goodwill in connection with the mark. Complainant’s VIVINT mark is the subject of multiple U.S. trademark registrations.
Respondent registered the disputed domain name <vivint365.com> in 2014; Complainant contends that this domain name is confusingly similar to its VIVINT mark. The domain name currently resolves to a parked page containing no content other than advertisements and links sponsored by the registrar. Complainant alleges that Respondent is using the domain name to divert traffic away from Complainant’s website and thereby disrupt Complainant’s business. Complainant states that Respondent is not affiliated with Complainant and has not been licensed or otherwise authorized to use Complainant’s mark. On these grounds, Complainant contends that Respondent has no rights or legitimate interests in the domain name, and that the domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding. Respondent’s email correspondence to the Forum, submitted after the deadline for a Response, states as follows: “It's fine. They may have it. I purposely did not contest it.”
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and has been used in bad faith.
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.
Although the parties have not informed the Panel of a formal settlement pursuant to paragraph 17 of the Rules, there does not appear to be any meaningful dispute between them, and Respondent has consented to the relief requested by Complainant. Furthermore, the Panel is unaware of any extenuating circumstances that would militate against the approach requested by Respondent. See, e.g., Enterprise Holdings, Inc. v. Muscari Holding Ltd., FA 1346463 (Nat. Arb. Forum Nov. 8, 2010) (holding that specific findings are appropriate in case involving registrant of numerous domain names used for marketing goods and services or as generic search terms); Sony Corp. v. Isaac Fong, FA 1532384 (Nat. Arb. Forum Jan. 2, 2014) (ordering transfer of domain name without specific analysis of paragraph 4(a) elements).
The Panel therefore finds it appropriate to order that the domain name be transferred to Complainant as requested, and declines to engage in a specific analysis of the elements set forth in paragraph 4(a) of the Policy.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <vivint365.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: October 3, 2014
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