Fitness International, LLC v. Alexander Chavez / LAfitnessstore
Claim Number: FA1808001801498
Complainant is Fitness International, LLC (“Complainant”), represented by Kristin Kosinski of Cislo & Thomas LLP, California, USA. Respondent is Alexander Chavez / LAfitnessstore (“Respondent”), Idaho, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <lafitnessco.com>, registered with Tucows Domains Inc.
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 15, 2018; the Forum received payment on August 15, 2018.
On August 15, 2018, Tucows Domains Inc. confirmed by e-mail to the Forum that the <lafitnessco.com> domain name is registered with Tucows Domains Inc. and that Respondent is the current registrant of the name. Tucows Domains Inc. has verified that Respondent is bound by the Tucows Domains 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 August 17, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 6, 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@lafitnessco.com. Also on August 17, 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.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default. However, Respondent did respond to an e-mail from the Forum, see below.
On September 20, 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 runs LA FITNESS clubs that are premier health clubs and receive consistent and laudable recognition. Its facilities contain state of the art equipment and cardio areas, and there are group fitness classes offered throughout the day, including specialty classes such as yoga, cycling, mat pilates, kickbox cardio, aqua aerobics, and more, along with personal training services, and racquetball and basketball courts. Complainant has rights in the LA FITNESS mark based upon its registration of the mark in the United States in 2000.
Complainant alleges that the disputed domain name is confusingly similar to Complainant’s mark because it wholly incorporates Complainant’s LA FITNESS mark, and is only differentiated by the addition of the generic term “co,” which is shorthand for “company,” and the “.com” generic top-level domain (“gTLD”).
According to Complainant, Respondent lacks rights and legitimate interests in the disputed domain name. Respondent is not authorized to use Complainant’s LA FITNESS mark and is not commonly known by the disputed domain name. Additionally, Respondent fails to use the disputed domain name in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use as, instead, the disputed domain name resolves to a website using Complainant’s mark “LAFITNESS” and offers athletic wear, such as t-shirts, shorts, leggings, bathing suits, sports bras, and fitness-type casual dresses, that are related to Complainant’s business.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent disrupts Complainant’s business by using the disputed domain name to operate a website that uses Complainant’s LA FITNESS mark and purports to offer athletic clothing for financial gain. Respondent failed to respond to Complainant’s cease-and-desist letters. Respondent had actual and constructive knowledge of Complainant’s rights in the LA FITNESS mark prior to registering the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding. However, in an e-mail exchange with the Forum, Respondent agreed to transfer the disputed domain name. The pertinent parts of that exchange are reproduced below:
Forum: “Please review the Complaint document which was sent to you on August 17, 2018 for details surrounding this dispute. Essentially, Complainant is seeking Transfer of the domain name as a remedy to this matter.”
Respondent (sic): “That's not an issue, i'd love to do that but how do i transfer domains”.
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."
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 <lafitnessco.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: September 10, 2018
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