Oath Inc. v. Ben Peter
Claim Number: FA1908001857074
Complainant is Oath Inc. (“Complainant”), represented by James R. Davis of Arent Fox LLP, Washington DC, USA. Respondent is Ben Peter (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <aoltech.support>, registered with NameCheap, 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 13, 2019; the Forum received payment on August 13, 2019.
On August 13, 2019, NameCheap, Inc. confirmed by e-mail to the Forum that the <aoltech.support> 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 August 15, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 4, 2019 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@aoltech.support. Also on August 15, 2019, 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. Respondent did however send an e-mail to the Forum, see below.
On September 6, 2019, 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 (formerly known as AOL Inc.), is the owner of the AOL mark that is used in connection with a variety of goods and services, including computer services, networks, research and reference materials, etc. Complainant has rights in the AOL mark through its trademark registration in the United States in 1996.
Complainant alleges that the disputed domain name is confusingly similar to Complainant’s AOL mark as it wholly incorporates the mark along with the descriptive terms “tech” and “support.”
According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not licensed or authorized to use Complainant’s AOL 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 or services or a legitimate noncommercial or fair use. Rather, Respondent uses the disputed domain name to pass off as Complainant in order to offer competing services. Furthermore, Respondent’s disclaimer is insufficient to prevent confusion.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent attempts to disrupt Complainant’s business and attract, for commercial gain, users to the disputed domain name where it offers competing technical support services. Respondent also used a privacy service to hide its identity. Finally, Respondent cannot, in good faith, argue that it had no knowledge of Complainant and its rights in the AOL mark.
B. Respondent
Respondent failed to submit a formal Response in this proceeding. In its e-mail to the Forum Respondent states: “We already removed domain and content from the site and we are not using this domain anymore.”
That e-mail was sent in Reply to an e-mail exchange between the Forum and Complainant, in which Complainant had enquired whether Respondent had replied, and the Forum had stated that Respondent had not replied. Both Complainant and Respondent were copied on the e-mail exchanges.
For the reasons set forth below, the Panel will not make any findings of fact.
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.
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, Respondent has indicated that it has abandoned the disputed domain name. The Panel finds that, in context, this amounts to agreement to transfer the disputed domain name to Complainant. Thus, 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 <aoltech.support> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: September 6, 2019
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