24 Hour Fitness USA, Inc. v. Susan Derderian
Claim Number: FA1806001793618
Complainant is 24 Hour Fitness USA, Inc. (“Complainant”), represented by Susan E. Hollander of c/o Venable LLP, California, USA. Respondent is Susan Derderian (“Respondent”), New Hampshire, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <24hourfitnesslocations.com>, 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 June 25, 2018; the Forum received payment on June 25, 2018.
On June 26, 2018, NameCheap, Inc. confirmed by e-mail to the Forum that the <24hourfitnesslocations.com> 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 June 29, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 19, 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@24hourfitnesslocations.com. Also on June 29, 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 response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default. However, Respondent did send an e-mail to the Forum, see below.
On July 23, 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 leading health club industry pioneer, and is one of the largest privately-held health and fitness chains in the world. Complainant has rights in the 24 HOUR FITNESS mark through its registration of the mark in the United States in 1998.
Complainant alleges that the disputed domain name is identical or confusingly similar to its mark as it contains the mark in its entirety and merely adds the generic term “locations” and the “.com” generic top-level domain (“gTLD”).
According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, as nothing in the WHOIS information would assist in supporting that finding. Complainant has not authorized, licensed, or otherwise permitted Respondent to use the mark in any domain name. Respondent does not use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, Respondent uses the domain name to divert Internet users to a parked website displaying links that route users to websites for Complainant’s competitors.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent uses the domain name to divert Internet users to a parked website displaying links that route users to websites for Complainant’s competitors, presumably to commercially benefit from click-through fees. Further, Respondent had actual and constructive knowledge of Complainant’s rights in the 24 HOUR FITNESS mark given the mark’s long term use and substantial fame and notoriety.
B. Respondent
Respondent failed to submit a Response in this proceeding. However, in her e-mail to the Forum, Respondent states, in pertinent part: “I think I registered this domain a couple of years ago and I never used it. If you want the domain, you can have it. Let me know how you want to proceed.”
For the reasons given 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, 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 <24hourfitnesslocations.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: July 23, 2018
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