Kohler Co. v Kirill M Romanov
Claim Number: FA1411001591802
Complainant is Kohler Co. (“Complainant”), represented by Paul D. McGrady of Winston & Strawn, Illinois, USA. Respondent is Kirill M Romanov (“Respondent”), of Moscow, Russia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <jacob-delafon.com>, registered with Regional Network Information Center, JSC d/b/a RU-CENTER.
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.
Darryl C. Wilson, as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on November 24, 2014; the National Arbitration Forum received payment on November 25, 2014.
On November 25, 2014, Regional Network Information Center, JSC dba RU-CENTER confirmed by e-mail to the National Arbitration Forum that the <jacob-delafon.com> domain name is registered with Regional Network Information Center, JSC dba RU-CENTER and that Respondent is the current registrant of the names. Regional Network Information Center, JSC dba RU-CENTER has verified that Respondent is bound by the Regional Network Information Center, JSC dba RU-CENTER 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 November 25, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 15, 2014 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@jacob-delafon.com. Also on November 25, 2014, 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 December 23, 2014 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Darryl C. Wilson, 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 uses the JACOB DELAFON mark to identify its plumbing-related products. The mark has been registered with the United States Patent and Trademark Office ("USPTO") (e.g., Reg. No. 1,704,773, registered Aug. 4, 1992). The <jacob-delafon.com> domain name is effectively identical to the JACOB DELAFON mark.
2. Respondent has no rights or legitimate interests in the <jacob-delafon.com> domain name. First, Respondent has never been commonly known as the <jacob-delafon.com> domain name. Furthermore, the <jacob-delafon.com> domain name is being used to promote Russian-language sales of JACOB DELAFON goods.
3. Respondent has registered and is using the <jacob-delafon.com> domain name in bad faith. Respondent is disrupting Complainant’s business by offering to sell Complainant’s own goods without authority or license to do so. Further, the sale of these goods on the domain name’s websites creates a likelihood of confusion by which Respondent can profit. Additionally, Respondent took advantage of its actual knowledge of Complainant’s rights when registering and using the domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is Kohler Co. of Kohler, WI, USA. Complainant is the owner of domestic and international registrations for the mark JACOB DELAFON, including a registration in Russia in 2006. Complainant has continuously used the mark in connection with its provision of plumbing goods and services since at least as early as 1992.
Respondent is Kirill M Romanov of Moscow, Russia. Respondent’s registrar’s address is not listed. Respondent registered the disputed domain name on or about January 18, 2009.
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 e-mail on November 26, 2014 from Respondent. In the email Respondent purports to consent to the transfer of the <jacob-delafon.com> domain name, and explains that the domain name will be released in January 2015. The Panel notes that it is under no obligation to acknowledge Respondent’s correspondence. The Panel has reviewed the correspondence and finds no reason to doubt its authenticity.
The Panel finds that Respondent consents to transfer the domain name to Complainant. The Panel further finds that under the present circumstances, where Respondent has not contested the transfer of the disputed domain name, but instead agrees to transfer the domain name in question to Complainant, it is unnecessary to proceed with the traditional UDRP analysis. The Panel finds that an order for the immediate transfer of the <jacob-delafon.com> domain name is warranted. 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.”).
Respondent consented to transfer.
Respondent consented to transfer.
Respondent consented to transfer.
Because the Respondent consented to transfer the Panel hereby Orders
that the <jacob-delafon.com> domain name be immediately TRANSFERRED from Respondent to Complainant.
Darryl C. Wilson, Panelist
Dated: January 6, 2015
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