Haggerty Enterprises, Inc.
v. Xedoc Holding SA c/o Domain Admin
Claim Number: FA0701000904173
PARTIES
Complainant is Haggerty
Enterprises, Inc. (“Complainant”),
represented by Lori S. Meddings, of Michael Best & Friedrich LLP,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <lavalamp.com>,
registered with Fabulous.com Pty Ltd.
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.
R. Glen Ayers, Jr. served as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the
National Arbitration Forum electronically on January
29, 2007; the National Arbitration Forum received a hard copy of the
Complaint on January 30, 2007.
On January 29,
2007, Fabulous.Com Pty Ltd.
confirmed by e-mail to the National Arbitration Forum that the <lavalamp.com>
domain name is registered with Fabulous.com Pty
Ltd. and that the Respondent is the current registrant of the name. Fabulous.com
Pty Ltd. has verified that Respondent is bound by the Fabulous.com Pty Ltd. 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 February 2,
2007, a Notification of Complaint and Commencement of Administrative
Proceeding (the “Commencement Notification”), setting a deadline of February
22, 2007, 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@lavalamp.com
by e-mail.
A timely Response was received and determined
to be complete on February 15, 2007.
A timely Additional Submission from
Complainant was received and determined to be complete on February 20, 2007.
A timely Additional Submission from
Respondent was received and determined to be complete on February 20,
2007.
On February 22, 2007,
pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed R. Glen Ayers, Jr. as
Panelist.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from Respondent to Complainant.
PARTIES’ CONTENTIONS
A.
Complainant
Complainant has asserted that it holds a
number of marks, including “lava,” “lava lite,” “lava brand,” “lava world
international,” and “lava.” These all
relate to the novelty lamp known as the lava lamp or lava light.
Respondent has registered <lavalamp.com>. Complainant asserts that the mark and name
are identical or confusingly similar.
Complainant alleges that Respondent has no rights or legitimate
interests in the name and assert that Respondent’s use for a “Sponsored
Results” page that redirects Internet users to both Complainant’s goods and
similar goods made by others does not give Complainant any rights in the
name.
Further, Complainant asserts that Respondent’s
registration is in bad faith.
B. Respondent
Respondent, although its response contains
some discussions defensive of its conduct, has stated that it “is more than
willing to transfer the domain name to Complainant.”
C. Additional Submissions
Pursuant to NAF Supplemental Rule 7, timely additional submissions, accompanied by the appropriate fee and submitted in either hard copy or electronic form, are considered. Both Respondent and Complainant made additional submissions that were timely received and in accordance with NAF Supplemental Rule 7. Respondent cites to a number of World Intellectual Property Organization (“WIPO”) cases in support of its allegation that the Panel may not accept additional submissions. NAF Panels are not governed by WIPO rules or policies, therefore, any WIPO cases used by Respondent in affirmation of its claim that additional submissions must at the request of the Panel are not controlling.
Both parties have filed additional submissions. Basically, Complainant has requested the Panel to make complete conclusions and findings. This appears to be largely because Respondent has asserted, but goes on to challenge the mark once again. Respondent in its additional submission makes a strong objection to additional filings.
FINDINGS
While the Panelist has considered the
additional submissions, the Panelist finds that findings and conclusions are
not necessary. Respondent has agreed to
transfer the <lavalamp.com>
domain name registration to Complainant and is willing to forego further
action. Respondent does not contest any
of Complainant’s allegations regarding the dispute domain name. Therefore, the Panelist may find that in
circumstances where Respondent has agreed to transfer and does not contest any
of Complainant’s allegations, the Panelist may decide to forego the traditional
UDRP analysis and give and order the immediate 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.”).
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.
Because Respondent has consented to the
transfer of the domain name, no discussion is included.
DECISION
Respondent having consented to the transfer,
relief shall be GRANTED.
R. Glen Ayers, Jr.,
Panelist
Dated: February 27, 2007
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