HomeVestors of America, Inc. v. Jon Baker
Claim Number: FA0507000515437
PARTIES
Complainant
is HomeVestors of America, Inc. (“Complainant”),
represented by Stephen L. Sapp, of Locke Liddell & Sapp,
2200 Ross Avenue, Suite 2200, Dallas, TX 75201. Respondent is Jon Baker (“Respondent”),
916 Peacock Dr., Saginaw, TX 76131.
REGISTRAR AND DISPUTED DOMAIN NAME
The
domain name at issue is <texashomevestors.com>,
registered with Register.com.
PANEL
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.
Tyrus
R. Atkinson, Jr., as Panelist.
PROCEDURAL HISTORY
Complainant
submitted a Complaint to the National Arbitration Forum electronically on July
14, 2005; the National Arbitration Forum received a hard copy of the Complaint
on July 15, 2005.
On
July 14, 2005, Register.com confirmed by e-mail to the National Arbitration
Forum that the domain name <texashomevestors.com>
is registered with Register.com and that the Respondent is the current
registrant of the name. Register.com
has verified that Respondent is bound by the Register.com 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
July 18, 2005, a Notification of Complaint and Commencement of Administrative
Proceeding (the “Commencement Notification”), setting a deadline of August 8,
2005 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@texashomevestors.com by e-mail.
A
timely Response was received and determined to be complete on August 3, 2005.
On August 9, 2005, pursuant to Complainant’s request to
have the dispute decided by a single-member
Panel, the National Arbitration Forum
appointed Tyrus R. Atkinson, Jr., as Panelist.
RELIEF SOUGHT
Complainant
requests that the domain name be transferred from Respondent to Complainant.
PARTIES’ CONTENTIONS
A.
Complainant
Complainant
and its related companies (collectively, “Home Vestors”) are in the business of
providing real estate related services, mortgage related services, building
repair related services, and franchising related services in the field of real
estate (the “Home Vestors Services”).
Complainant
owns service marks granted by the United States Patent and Trademark Office in
the mark, HOMEVESTORS, under Reg. Nos. 2,216,811, 2,402,260 and 2,729,129, the
first registration bearing the date 1999.
Complainant
owns domain name registrations for <homevestors.com> and
<homevestors.net>.
Respondent
registered <texashomevestors.com> in October 2004.
The
domain name, <texashomevestors.com> is confusingly similar to
Complainant’sservice mark, HOMEVESTORS.
Respondent
has no rights to or legitimate interests in the domain name.
The
domain name was registered and used in bad faith.
B.
Respondent
Respondent
is in the business of selling real estate.
Respondent
states that no malicious intent was present to gain advantage from
Complainant. Respondent was not trying
to gain traffic to his site unjustly or at the expense of Complainant. It is difficult to believe that any damage,
loss of income, or other negative effect was inflicted on the Complainant in
any way whatever. If Complainant wishes
to use the domain name <texashomevestors.com> they are welcome to
it, It has generated absolutely no
business for Respondent. One phone call
from Complainant would have accomplished that.
C.
Additional Submissions
None
FINDINGS
DISCUSSION
Paragraph 15(a) of the Rules for Uniform Domain Name
Dispute Resolution Policy (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 the 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 the Respondent is identical or confusingly similar to a
trademark or service mark in which the Complainant has rights;
(2)
the
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.
It is unnecessary to make specific
findings regarding the elements of Paragraph 4(a) in a factual situation where
a respondent concedes or stipulates that the disputed domain names be
transferred to a complainant. See
Boehringer Ingelheim International GmbH v. Modern Limited-Cayman Web
Development, FA 133625 (Nat. Arb. Forum Jan. 9, 2003); see also Disney
Enters., Inc. v. Morales, FA 475191 (Nat. Arb. Forum June 24, 2005) holding
“[U]nder such circumstances where Respondent has agreed to comply with
Complainant’s request, the Panel felt it to be expedient and judicial to forgo
the traditional UDRP analysis and order the transfer of the domain names.”
This Panel agrees with and follows the
reasoning set out in Malev Hungarian Airlines, Ltd. v. Vertical Axis Inc.
FA212653 (Nat. Arb. Forum Jan. 13, 2004) wherein it was stated as follows: “Since the requests of the parties is 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.”
This Panel finds that Respondent’s
statement that “If Complainant wishes to use the domain name <texashomevestors.com>
they are welcome to it” and that “One phone call from Complainant would
have accomplished that” to be an agreement on Respondent’s part to transfer the
domain name to Complainant.
DECISION
Having
established that Respondent has no objection to the transfer of the domain name
from Respondent to Complainant, and that transfer of the domain name under the
circumstances not having been found to be a violation of ICANN Policy, the
Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <texashomevestors.com>
domain name be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated: August 22, 2005
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