national arbitration forum

 

DECISION

 

Habersham Plantation Corporation v. Richard Thomas and Jenny Thomas

Claim Number: FA0701000904220

 

PARTIES

Complainant is Habersham Plantation Corporation (“Complainant”), represented by Paul D. McGrady, of Greenberg Traurig, LLP, 77 West Wacker Drive, Suite 2500, Chicago, IL 60601.  Respondent is Richard Thomas and Jenny Thomas (“Respondent”), 62 Griffith Ln, Benton, KY 42025.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <habershamhome.com>, registered with Innerwise, Inc. d/b/a Itsyourdomain.com.

 

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 January 29, 2007; the National Arbitration Forum received a hard copy of the Complaint on January 30, 2007.

 

On January 30, 2007, Innerwise, Inc. d/b/a Itsyourdomain.com confirmed by e-mail to the National Arbitration Forum that the <habershamhome.com> domain name is registered with Innerwise, Inc. d/b/a Itsyourdomain.com and that Respondent is the current registrant of the name.  Innerwise, Inc. d/b/a Itsyourdomain.com has verified that Respondent is bound by the Innerwise, Inc. d/b/a Itsyourdomain.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 January 31, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of February 20, 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@habershamhome.com by e-mail.

 

Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.

 

On February 20, 2007, Respondent requested additional time to respond to the Complaint.  The National Arbitration Forum denied Respondent’s request on February 21, 2007, finding that Respondent had not submitted sufficient evidence to show there were exceptional circumstances required by Rule 5, and Respondent also did not submit the required fee.

 

On February 22, 2007, after the expiration of the Response period, Complainant requested a Stay of Administrative Proceeding for eighteen days until March 12, 2007, pursuant to Supplemental Rule 6(b)(i).  On February 22, 2007, the National Arbitration Forum granted the Stay. 

 

On March 12, 2007, Complainant filed with the National Arbitration Forum a Request to

Remove the Stay of Administrative Proceeding.  On March 12, 2007, the National Arbitration Forum granted Complainant’s request.

 

On March 14, 2007, 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.

 

Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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."  Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.

 

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 <habershamhome.com> domain name is confusingly similar to Complainant’s HABERSHAM mark.

 

2.      Respondent does not have any rights or legitimate interests in the <habershamhome.com> domain name.

 

3.      Respondent registered and used the <habershamhome.com> domain name in bad faith.

 

B.  Respondent failed to submit a Response in this proceeding.

 

PRELIMINARY ISSUE

Complainant’s representative, via e-mail correspondence, has indicated that civil litigation concerning the disputed domain name has commenced.  Pursuant to ICANN Rule 18(a), the Panel has discretion to either proceed with or suspend the administrative proceeding.

 

In accordance with Rule 17(b), the Panel chooses to terminate the administrative proceeding and hereby dismisses this Complaint without prejudice.  See Lutton Invs., Inc. v. Darkhorse Distrib., Inc., FA 154142 (Nat. Arb. Forum June 4, 2003) (stating that “[t]he pending arbitration between the parties to this dispute, touching on matters directly relevant to the resolution of a claim under the UDRP, justifies terminating the present administrative proceeding” and dismissing the complaint without prejudice); see also AmeriPlan Corp. v. Gilbert FA 105737 (Nat. Arb. Forum Apr. 22, 2002) (the function of the UDRP is to reduce the cost and effort required to resolve domain name disputes by offering a simplified mechanism in lieu of litigation, to render a decision on a domain name dispute when there is already a court action pending does violence to this function of the UDRP).

 

DECISION

It is Ordered that the Complaint be DISMISSED without prejudice.

 

 

­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­

James A. Carmody, Esq., Panelist

Dated:  March 23, 2007

 

 

Click Here to return to the main Domain Decisions Page.

 

Click Here to return to our Home Page

 

National Arbitration Forum