Glen Raven, Inc. v Lynne Leventen / Living By Lynne
Claim Number: FA1706001737427
Complainant is Glen Raven, Inc. (“Complainant”), represented by Christopher Kelly of Wiley Rein LLP, District of Columbia, USA. Respondent is Lynne Leventen / Living By Lynne (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <malibusunbrella.com>, registered with GoDaddy.com, LLC.
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 26, 2017; the Forum received payment on June 28, 2017.
On June 27, 2017, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <malibusunbrella.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On June 30, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 20, 2017 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@malibusunbrella.com. Also on June 30, 2017, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Respondent did not submit a formal response. She did however send several e-mails to the Forum, see below. Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On July 25, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant states that it is a performance fabric manufacturer specializing in residential and commercial shade products. Complainant uses the SUNBRELLA mark to promote its goods and services. Complainant has rights in the SUNBRELLA mark due to registration in the United States in 1960.
Complainant alleges that the disputed domain name domain name is confusingly similar to Complainant’s mark because it merely adds the geographic term “Malibu” and appends that generic top-level domain (“gTLD”) “.com.”
According to Complainant, Respondent lacks rights and legitimate interests in the disputed domain name. Complainant has not licensed or otherwise authorized Respondent to use its SUNBRELLA mark in any fashion and Respondent is not commonly known by the disputed domain name.
Further, says Complainant, Respondent has registered and is using the disputed domain name in bad faith. Due to Complainant’s high degree of fame and goodwill in the SUNBRELLA mark, Respondent had actual knowledge of Complainant’s rights in the mark at the time the disputed domain name was registered. Respondent’s passive use of the domain name to resolve to a parked website is further evidence of Respondent’s bad faith.
B. Respondent
Respondent failed to submit a formal Response in this proceeding. However, Respondent sent several e-mails to the Forum. These state, in pertinent part:
Don't need the domain name. Haven't used it. Will be happy to give it over or up.
…
If you consent to releasing the locked domain name. I can release it immediately with go daddy so there is no more further problems.
…
I hereby give you notice that I will be dropping this name and I would like godaddy to unblock it so I can release it back to godaddy.
…
Please release my lock in go daddy so that I may release the malibusunbrella.com. Having a lock on this does not resolve this matter as I have agreed to release it.
There is no dispute. Please release the lock on my account with go daddy so I can release the name to the company. I sell to my customers sunbrella and I am agreeing to release the name.
For the reasons set forth below, the Panel will not make any findings of fact.
Paragraph 15(a) of 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; and
(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.
In the present case, the parties have both asked for the domain name to be transferred to the Complainant. In accordance with a general legal principle governing arbitrations as well as national court proceedings, this Panel holds that it cannot act nec ultra petita nec infra petita, that is, that it cannot issue a decision that would be either less than requested, nor more than requested by the parties. 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 Malev Hungarian Airlines, Ltd. v. Vertical Axis Inc., FA 212653 (Forum Jan. 13, 2004); see also Boehringer Ingelheim Int’l GmbH v. Modern Ltd. – Cayman Web Dev., FA 133625 (Forum Jan. 9, 2003) (transferring the domain name registration where the respondent stipulated to the transfer); see also Disney Enters., Inc. v. Morales, FA 475191 (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.”).
For the reasons set forth above, the Panel will not analyze this element of the Policy.
For the reasons set forth above, the Panel will not analyze this element of the Policy.
For the reasons set forth above, the Panel will not analyze this element of the Policy.
Given the common request of the Parties, it is Ordered that the <malibusunbrella.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: July 25, 2017
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