Mary Frances Accessories, Inc. v. The
Shoe Salon
Claim Number: FA0508000528458
PARTIES
Complainant
is Mary Frances Accessories, Inc. (“Complainant”)
represented by Karl S. Kronenberger, of Kronenberger & Associates, 220 Montgomery Street, Suite 1920, San Francisco, CA 94104. Respondent is The Shoe Salon (“Respondent”), 9561 Hwy. 98 W, Destin, FL 32541.
REGISTRAR AND DISPUTED DOMAIN NAME
The
domain name at issue is <maryfrances.com>,
registered with Network Solutions, 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.
The
Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
PROCEDURAL HISTORY
Complainant
submitted a Complaint to the National Arbitration Forum electronically on August
1, 2005; the National Arbitration Forum received a hard copy of the Complaint
on August 1, 2005.
On
August 2, 2005, Network Solutions, Inc. confirmed by e-mail to the National
Arbitration Forum that the <maryfrances.com>
domain name is registered with Network Solutions, Inc. and that the Respondent
is the current registrant of the name. Network
Solutions, Inc. has verified that Respondent is bound by the Network Solutions,
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
August 9, 2005, a Notification of Complaint and Commencement of Administrative
Proceeding (the “Commencement Notification”), setting a deadline of August 29,
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@maryfrances.com by e-mail.
A
timely Response was received on August 22, 2005. Although the Response was not received in hardcopy form as
required by ICANN Rule #5(a), the Panel, in its discretion, shall consider the
Response.
On August 28, 2005, pursuant to Complainant’s request to
have the dispute decided by a single-member
Panel, the National Arbitration Forum
appointed the Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
RELIEF SOUGHT
Complainant
requests that the domain name be transferred from Respondent to Complainant.
PARTIES’ CONTENTIONS
A.
Complainant, Mary Frances Accessories, Inc., makes the following assertions:
1. Respondent’s <maryfrances.com> domain name is confusingly similar to
Complainant’s MARY FRANCES mark.
2. Respondent does not have any rights or
legitimate interests in the <maryfrances.com>
domain name.
3. Respondent registered and used the <maryfrances.com> domain name in
bad faith.
B.
Respondent
Respondent,
The Shoe Salon, “stipulates and agrees to a decision in this case in favor of
the Complainant, Mary Frances Accessories, and requests that the Panel order
the MARYFRANCES.COM domain name be transferred to Complainant.”
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.
Respondent has agreed to transfer the <maryfrances.com> domain name to
Complainant in satisfaction of Complainant’s requested remedy. Where Respondent has agreed to comply with
Complainant’s request, the Panel may decide 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
Accordingly,
the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <maryfrances.com>
domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr.
(Ret.), Panelist
Dated: September 6, 2005
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