TechSmith Corporation v. Richard Prosser / RBP Consulting Ltd.
Claim Number: FA1801001765494
Complainant is TechSmith Corporation (“Complainant”), represented by James R. Duby of DUBY LAW FIRM, Michigan, USA. Respondent is Richard Prosser / RBP Consulting Ltd. (“Respondent”), United Kingdom.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <camtasiaexpert.com>, registered with NameCheap, Inc.
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 January 4, 2018; the Forum received payment on January 4, 2018.
On January 4, 2018, NameCheap, Inc. confirmed by e-mail to the Forum that the <camtasiaexpert.com> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. 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 January 5, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 25, 2018 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@camtasiaexpert.com. Also on January 5, 2018, 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 Response, but he did send two e-mails to the Forum, see below. Having received no formal response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On January 30, 2018, 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 uses its CAMTASIA mark to promote its products and services in the computer software field. Complainant established rights in the mark through registration in the United States in 2001.
Complainant alleges that the disputed domain name is confusingly similar to Complainant’s CAMTASIA mark because it merely appends the generic term “expert” and the generic top-level domain (“gTLD”) “.com” to the fully incorporated mark.
According to Complainant, Respondent does not have rights or legitimate interests in the disputed domain name. Complainant has not licensed or otherwise authorized Respondent to use its mark in any fashion. Respondent is not commonly known by the disputed domain name, as the WHOIS information of record lists “Richard Prosser / RBP Consulting Ltd.” as the registrant. Respondent is not using the disputed domain name in connection with any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the domain name to resolve to a website featuring unauthorized links to free downloads of Complainant’s computer program as well as other competing programs. Respondent presumably receives pay-per-click revenue from the displayed links.
Further, says Complainant, Respondent registered and is using the disputed domain name in bad faith. Respondent attempts to disrupt Complainant’s business by diverting Internet users to its website, which features competing pay-per-click hyperlinks. Respondent also uses the domain name to create a likelihood of confusion with Complainant’s CAMTASIA mark for Respondent’s commercial gain. Finally, Respondent registered and uses the domain name with full knowledge of Complainant’s rights in the CAMTASIA mark.
B. Respondent
Respondent failed to submit a Response in this proceeding. However, in e-mails to the Forum, Respondent states, in pertinent part (emphasis added): “I contacted Techsmith directly soon after I registered the name as I realised that it might infringe their trademark, which they confirmed. I had no intention of using this domain and I intended to let the registration lapse in due course.” And: “As stated earlier, I intend to let the registration lapse in due course and IMO that should be sufficient. If you insist on transfer of ownership then please supply the necessary details but I really don't see the point.”
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, Complainant has asked for the domain name to be transferred to it, and Respondent has consented, stating: “If you insist on transfer of ownership then please supply the necessary details”. Thus the Panel finds that 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 <camtasiaexpert.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: January 30, 2018
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