State Farm Mutual Automobile Insurance Company v. Daniel Eckler / Duke Magazine
Claim Number: FA1801001766290
Complainant is State Farm Mutual Automobile Insurance Company (“Complainant”), represented by Nathan Vermillion of State Farm Mutual Automobile Insurance Company, Illinois, USA. Respondent is Daniel Eckler / Duke Magazine (“Respondent”), Canada.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <statefarm.pink>, registered with NameCheap, Inc.
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 Forum electronically on January 10, 2018; the Forum received payment on January 10, 2018.
On January 10, 2018, NameCheap, Inc. confirmed by e-mail to the Forum that the <statefarm.pink> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. 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 January 11, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 31, 2018 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@statefarm.pink. Also on January 11, 2018, 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 formal response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default. Repondent did however send three e-mails to the Forum, see below.
On February 5, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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
Complainant states that it is a nationally known company that engages in the financial and insurance services industry. It has rights in the STATE FARM mark through its trademark registrations in the United States in 2012 and Canada in 2002.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not associated with or an affiliate of Complainant, nor is Respondent authorized to use Complainant’s STATE FARM mark. Additionally, Respondent is not commonly known by the disputed domain name. Furthermore, Respondent has not made a bona fide offering of goods or services, or a legitimate non-commercial or fair use of the domain. The disputed domain name resolves to an inactive webpage displaying an error message.
According to Complainant, Respondent registered and is using the disputed domain name in bad faith. Respondent attempts to create a likelihood of confusion as to Respondent’s affiliation with Complainant. Furthermore, Respondent has not shown any demonstrable intent to actively use the domain. Respondent registered the disputed domain name with actual knowledge of Complainant and its rights to the STATE FARM mark.
B. Respondent
Respondent failed to submit a Response in this proceeding. However, in his e-mails to Forum he states, in pertinent part:
I've received three direct emails from State Farm prior to your email, and responded to every one offering to transfer the domain … and never received any response from State Farm.
…
I want to resolve this as soon as possible, I've been trying to simply transfer the domain since day one. … I just want to get State Farm their domain back ASAP.
For the reasons set forth below, the Panel will not make any findings of fact.
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 the present case, Complainant has asked for the domain name to be transferred to it, and Respondent has consented. Thus the Panel finds that the parties have both asked for the domain name to be transferred to the Complainant. In accordance with a general legal principle governing arbitrations as well as national court proceedings, this Panel holds that it cannot act nec ultra petita nec infra petita, that is, that it cannot issue a decision that would be either less than requested, nor more than requested by the parties. 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 Malev Hungarian Airlines, Ltd. v. Vertical Axis Inc., FA 212653 (Forum Jan. 13, 2004); see also 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 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.”).
For the reasons set forth above, the Panel will not analyze this element of the Policy.
For the reasons set forth above, the Panel will not analyze this element of the Policy.
For the reasons set forth above, the Panel will not analyze this element of the Policy.
Given the common request of the Parties, it is Ordered that the <statefarm.pink> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: February 5, 2018
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