Radio Flyer Inc. v. Michael Maslack
Claim Number: FA1606001677366
Complainant is Radio Flyer Inc. (“Complainant”), represented by Ulrika E. Mattsson of McDermott Will & Emery LLP, Illinois, USA. Respondent is Michael Maslack (“Respondent”), Vermont, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <radioflyervt.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.
John J. Upchurch as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 1, 2016; the Forum received payment on June 1, 2016.
On June 1, 2016, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <radioflyervt.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 June 2, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 22, 2016 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@radioflyervt.com. Also on June 2, 2016, 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 Forum transmitted to the parties a Notification of Respondent Default.
On June 27, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed John J. Upchurch as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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 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 is a manufacturer of toys. Complainant has been using the RADIO FLYER mark in connection with these products since registration of the mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 0635875, registered Oct. 16, 1956). Respondent’s <radioflyervt.com> domain name is confusingly similar to the RADIO FLYER mark. Respondent’s domain name incorporates the entire mark while adding the abbreviation “vt” for “Vermont” and the generic top-level domain (“gTLD”) “.com.”
2. Respondent lacks rights or legitimate interests in the <radioflyervt.com> domain name. Respondent is not commonly known by or authorized to make use of the RADIO FLYER mark. Respondent’s disputed domain name resolves to a webpage promoting a music band, unrelated to Complainant’s business.
3. Respondent registered and is using the disputed domain name in bad faith. Respondent’s promotion of the <radioflyervt.com> domain name to promote a band capitalizes on the likelihood of confusion as to the source, sponsorship, affiliation or endorsement of the website. The <radioflyervt.com> domain name was registered with actual or constructive knowledge of Complainant’s rights in the RADIO FLYER mark.
B. Respondent:
1. Respondent did not submit a response for the Panel’s consideration in this proceeding.
Consent to Transfer
The Forum was copied on documentation submitted from Respondent to Complainant, which is identified in this proceeding as “Correspondence - Respondent.” In this document, Respondent purports to consent to the transfer of the <radioflyervt.com> domain name stating, “I agree with the Radio Flyer Corp. legal information they provided, and their request to relinquish the RADIOFLYERVT.COM domain.”
Thus, the Panel finds that Respondent consents to transfer the <radioflyervt.com> domain name to Complainant. As a result, the Panel finds that in a circumstance such as this, where 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 shall forego the traditional UDRP analysis and order an immediate transfer of the <radioflyervt.com> domain name. See Boehringer Ingelheim Int’l GmbH v. Modern Ltd. – Cayman Web Dev., FA 133625 (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 (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 (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.”).
DECISION
Respondent has consented to transfer of the <radioflyervt.com> domain name to Complainant.
Accordingly, it is Ordered that the <radioflyervt.com> domain name be TRANSFERRED from Respondent to Complainant.
John J. Upchurch, Panelist
Dated: July 8, 2016
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