Smartsheet Inc. v. wenbo wang
Claim Number: FA1810001811290
Complainant is Smartsheet Inc. (“Complainant”), represented by Jolene Marshall of Smartsheet, Washington, USA. Respondent is wenbo wang (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <smartsheet.app>, registered with Blue Razor Domains, LLC.
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.
Charles A. Kuechenmeister.
Complainant submitted a Complaint to the Forum electronically on October 11, 2018; the Forum received payment on October 23, 2018.
On October 29, 2018, Blue Razor Domains, LLC confirmed by e-mail to the Forum that the <smartsheet.app> domain name (the “Domain Name”) is registered with Blue Razor Domains, LLC and that Respondent is the current registrant of the name. Blue Razor Domains, LLC has verified that Respondent is bound by the Blue Razor Domains, 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 October 31, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint setting a deadline of November 20, 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@smartsheet.app. Also on October 31, 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.
On November 26, 2018, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed Charles A. Kuechenmeister 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.
PRELIMINARY ISSUES
Respondent Offer to Transfer
The Forum received email correspondence from Respondent on October 31, 2018 and on another date in 2018 which date is written in Chinese and not understood by the Panel. Neither of these emails qualifies as a Response under Rule 5(c), but in both emails Respondent expressed a willingness to transfer the Domain Name to Complainant. See, email dated October 31, 2018 (“I haven’t received any email or phone call to talk [sic] this domain from Smartsheet and Godaddy before today, [sic] If so, I’m sure I will transfer it to smartsheet at that time, . . .”), and the second email (“I’m soooo sorry to get trouble to you for this domain (smartsheet.app), . . . . Anyway, I apologized for this behavior and hope to get your understanding for my bad. I can transfer this domain to Smartsheet inc. freely at any time.”). These messages appear to be authentic. The Panel is under no obligation to consider any of them, but as required by Policy ¶ 8(a), upon notice of the commencement of this proceeding, the registrar, Blue Razor Domains, LLC, placed a hold on Respondent’s account. Respondent therefore cannot transfer the Domain Name while this proceeding is pending. Under these circumstances, where Respondent does not contest the transfer of the Domain Name but instead agrees to transfer it to Complainant, the Panel may forego the traditional UDRP analysis and order an immediate transfer of the Domain Name. 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), Malev Hungarian Airlines, Ltd. v. Vertical Axis Inc., FA 212653 (Forum Jan. 13, 2004) (“In this case, the parties have both asked for the domain name to be transferred to the Complainant . . . 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.”), 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”). This Panel elects to adopt this approach and will order the transfer of the Domain Name without a UDRP analysis.
Failure of Proof
Notwithstanding the foregoing, the Panel wishes to note the lack of evidence submitted by Complainant to support its argument that it registered its SMARTSHEET trademark with the United States Patent and Trademark Office (USPTO). The Complaint makes that assertion and states filing dates and registration numbers for two USPTO registrations. It refers to Annex 1 Exhibit B filed with the Complaint. This exhibit, however, is simply a repeat of the unsupported allegations in the Complaint. For whatever reason, Complainant failed to submit any evidence to support these allegations, such as a copy of the USPTO Certificate of Registration or a TESS report pertaining to either of these alleged registrations. On the evidence before the Panel, it would have been forced to conclude that Complainant failed to prove that it has rights in the relevant mark, which is one of the required elements of proof under Policy ¶ 4(a)(i). This would have been fatal to its case.
Based upon the offer of Respondent to transfer the Domain Name to Complainant, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <smartsheet.app> Domain Name be TRANSFERRED to Complainant.
Charles A. Kuechenmeister, Panelist
Dated: November 27, 2018
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