Expedia, Inc. v. Louise
Short
Claim Number: FA0704000954076
PARTIES
Complainant is Expedia, Inc. (“Complainant”), represented by Sharon
A. Ceresnie, of Pattishall, McAuliffe, Newbury, Hilliard
& Geraldson LLP,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <expediacarhire.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.
Calvin A. Hamilton as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
electronically on April 4, 2007; the
National Arbitration Forum received a hard copy of the Complaint on April 9, 2007.
On April 5, 2007, Innerwise, Inc. d/b/a Itsyourdomain.com confirmed by
e-mail to the National Arbitration Forum that the <expediacarhire.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 April 12, 2007, a Notification
of Complaint and Commencement of Administrative Proceeding (the “Commencement
Notification”), setting a deadline of May 2, 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@expediacarhire.com by e-mail.
The National Arbitration Forum received a Response electronically on
May 2, 2007, but did not receive the Response in hard copy format until after
the deadline for Response. Therefore,
the Response is deficient according to Supplemental Rule 5(a).
On May 10, 2007, pursuant to Complainant’s request
to have the dispute decided by a single-member
Panel, the National Arbitration Forum
appointed Calvin A. Hamilton as Panelist.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A.
Complainant
makes the following assertions:
a.
The
domain name <expediacarhire.com> is identical and/or confusingly similar
to a trademark or service mark in which Complainant has rights;
b.
Respondent
has no rights or legitimate interests in respect of the domain name that is
subject to the Complaint;
c.
Respondent
registered and used the domain name in bad faith.
B.
Respondent
makes the following assertions:
a.
The
domain name <expediacarhire.com> was registered by error.
b.
Respondent
is in agreement with the transfer of said domain name to Complainant.
FINDINGS
The panel will not make any findings of fact, for the reasons explained
below.
DISCUSSION
Procedural
Issue: Deficient Response
The first issue to be decided by this Panel is a procedural issue,
namely whether or not to admit the Response, which, although the National Arbitration Forum received
Respondent’s electronic submission in a timely manner, Respondent failed to
submit a hard copy within the time allowed.
Under
Paragraph 14(b) of the Rules, it is established that: "If a Party, in the
absence of exceptional circumstances, does not comply with any provision of, or
requirement under, these Rules or any request from the Panel, the Panel shall
draw such inferences therefrom as it considers appropriate."
In
the light of the above, the Panel may draw such inferences from Respondent’s
failure to comply with the Rules as he considers appropriate (see Rule 14(b); see also Talk City, Inc. v.
Robertson, D2000-0009 (WIPO Feb. 29, 2000)).
Given
that the non-compliance of the Rules is of a technical nature, the Panel accepts
the Response and will give the document due consideration. See Six Continents Hotels,
Inc. v. Nowak, D2003-0022 (WIPO Mar. 4, 2003) (holding that the
respondent’s failure to submit a hard copy of the response and its failure to
include any evidence to support a finding in its favor placed the respondent in
a de facto default posture, permitting the panel to draw all appropriate
inferences stated in the complaint); see also J.W. Spear & Sons PLC v.
Fun League Mgmt., FA 180628 (Nat. Arb. Forum Oct. 17, 2003) (finding that
where the respondent submitted a timely response electronically, but failed to
submit a hard copy of the response on time, “[t]he
Panel is of the view that given the technical nature of the breach and the need
to resolve the real dispute between the parties that this submission should be
allowed and given due weight”).
Preliminary Issue: Consent to Transfer the
Subject Domain Name
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 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 Respondent is
identical or confusingly similar to a trademark or service mark in which
Complainant has rights;
(2) 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.
However, in this case Respondent does not contest any of
Complainant’s allegations regarding the <expediacarhire.com> domain name.
Rather, Respondent has consented to judgment in favor of Complainant
and authorizes the immediate transfer of the subject domain name. In a circumstance such as this, where a respondent has admitted that it does
not have an interest in the disputed domain name and has consented to the
transfer of the disputed domain name, the Panel may forego the traditional UDRP
analysis and order the immediate transfer of the disputed domain name. See
In addition, Respondent has admitted that the domain name was
registered in error by a zealous employee.
DECISION
Given the common request of the parties, it
is Ordered that the <expediacarhire.com> domain
name be TRANSFERRED from Respondent to Complainant.
Calvin A. Hamilton, Panelist
Dated: May 24, 2007
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