Plex, Inc. v. Heart Bleed
Claim Number: FA1912001874595
Complainant is Plex, Inc. (“Complainant”), represented by Christopher J. Palermo of Hickman Palermo Becker Bingham LLP, California, United States. Respondent is Heart Bleed (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <plex.run>, registered with GoDaddy.com, LLC.
The undersigned certifies that he 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 December 10, 2019; the Forum received payment on December 10, 2019.
On December 11, 2019, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <plex.run> 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 December 13, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 2, 2020 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@plex.run. Also on December 13, 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 January 6, 2020, 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 leading provider of computer software and online services in the field of digital media management. Complainant sells, supports, and selectively grants licenses to use or distribute the widely acclaimed Plex Media Server software for Mac, PC, Android, iOS and other various platforms. The basic function of this software is to permit consumers, such as home users of PCs, with a way to organize and view an electronic program guide of all videos that are stored on their home systems, across multiple devices, or that they have viewed or might want to view on external services such as Netflix, YouTube, and the like via links. It is possible to create a personal catalog of videos located all over the Web, then play them on any device in the home or using mobile devices. Complainant has rights in the PLEX mark through its registration in the United States in 2014.
Complainant alleges that the disputed domain name is identical or confusingly similar to its PLEX mark as it includes the mark in its entirety, merely adding the “.run” generic top-level domain (“gTLD”).
According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name and Respondent is not a licensee or authorized to use the Complainant’s mark. Additionally, Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent’s use of the disputed domain name resolves to a webpage which offers media streaming services identical to Complainant’s.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent attempts to attract, for commercial gain, Internet users to Respondent’s webpage by creating a likelihood of confusion as to affiliation with Complainant. Additionally, the disputed domain name resolves to a webpage which uses Complainant’s mark and directly competes with Complainant. Finally, Respondent had actual or constructive knowledge of Complainant’s rights in the PLEX mark prior to its registration of the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding. In its e-mail to the Forum, Respondent states (sic): “I really apologies for the issue. I have removed the site from the hosting. I am not able to delete the domain from my domain registrar I can try to transfer the domain to your account but rest assured I will not host the site ever in future.”
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."
That Panel finds that Respondent has consented to transfer the disputed domain name to Complainant. That is, 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 <plex.run> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: January 6, 2020
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