Independence Air, Inc. v. Craig McDonald
Claim Number: FA0506000493834
PARTIES
Complainant
is Independence Air, Inc. (“Complainant”),
represented by James L. Bikoff, of Silverberg Goldman & Bikoff, LLP, 1101 30th St., N.W., Suite 120, Washington, DC 20007. Respondent is Craig McDonald (“Respondent”), 2111 Douglas St., Victoria, British
Columbia, v8t, 412, Canada.
REGISTRAR AND DISPUTED DOMAIN NAME
The
domain name at issue is <flyivacations.com>,
registered with Wild West Domains, Inc.
PANEL
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.
James
A. Carmody, Esq., as Panelist.
PROCEDURAL HISTORY
Complainant
submitted a Complaint to the National Arbitration Forum electronically on June
9, 2005; the National Arbitration Forum received a hard copy of the Complaint
on June 10, 2005.
On
June 13, 2005, Wild West Domains, Inc. confirmed by e-mail to the National
Arbitration Forum that the domain name <flyivacations.com>
is registered with Wild West Domains, Inc. and that the Respondent is the
current registrant of the name. Wild
West Domains, Inc. has verified that Respondent is bound by the Wild West
Domains, Inc. registration agreement and has thereby agreed to resolve
domain-name disputes brought by third parties in accordance with ICANN’s
Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On
June 14, 2005, a Notification of Complaint and Commencement of Administrative
Proceeding (the “Commencement Notification”), setting a deadline of July 5,
2004 by which Respondent could file a Response to the Complaint, was
transmitted to Respondent via e-mail, post and fax, to all entities and persons
listed on Respondent’s registration as technical, administrative and billing
contacts, and to postmaster@flyivacations.com by e-mail.
A
timely Response was received and determined to be complete on July 4, 2005. However, since the Response was not received
in hardcopy form, the National Arbitration Forum does not consider the Response
to be in compliance with ICANN Rule #5(a).
On July 7, 2005, pursuant to Complainant’s request to
have the dispute decided by a single-member
Panel, the National Arbitration Forum
appointed James A. Carmody, Esq., as Panelist.
RELIEF SOUGHT
Complainant
requests that the domain name be transferred from Respondent to Complainant.
PARTIES’ CONTENTIONS
A.
Complainant makes the following assertions:
1. Respondent’s <flyivacations.com> domain name is confusingly similar to
Complainant’s FLYI mark.
2. Respondent does not have any rights or
legitimate interests in the <flyivacations.com>
domain name.
3. Respondent registered and used the domain
name at issue in bad faith.
B.
Respondent:
Respondent
did not make a Response in accordance with the Policy, but in his
non-conforming submission, he makes clear that he consents to the relief being
sought in this proceeding by the Complainant.
FINDINGS
This is an unopposed proceeding, and Complainant’s
allegations are found to be prima facie sufficient to satisfy the elements of
the Policy and will be presumed to be true.
DISCUSSION
In a circumstance such as this, in
which Respondent has agreed to comply with Complainant’s
request, the Panel decides to forego the traditional UDRP analysis and order the transfer of the domain name. 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”).
DECISION
Having
established all three elements required under the ICANN Policy, the Panel
concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <flyivacations.com>
domain name be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: July 18, 2005
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