Rain Raps, LLC v. Lindsay Hagerman / GAZEBO GREEN
Claim Number: FA1912001874867
Complainant is Rain Raps, LLC (“Complainant”), represented by Amanda L. DeFord of McGuireWoods LLP, Virginia, USA. Respondent is Lindsay Hagerman / GAZEBO GREEN (“Respondent”), USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <rainwraps.com>, 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.
Steven M. Levy, Esq. as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 12, 2019; the Forum received payment on December 12, 2019.
On December 16, 2019, NameCheap, Inc. confirmed by e-mail to the Forum that the <rainwraps.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 December 17, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 6, 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@rainwraps.com. Also on December 17, 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.
A timely Response was received and determined to be complete on January 5, 2020.
On January 13, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Steven M. Levy, Esq. 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant produces and sells fashionable women’s rainwear, winter wear, accessories, and other kinds of garments. Complainant has rights in the trademark RAINRAPS through its registration of the mark with the United States Patent and Trademark Office (“USPTO”) on June 25, 2019. Complainant also claims common law rights in the RAINRAPS mark dating back to 2012. Respondent’s <rainwraps.com> domain name is confusingly similar to Complainant’s mark as Respondent merely uses the phonetically identical word “wraps” instead of the word “raps” and adds the “.com” generic top-level domain name (“gTLD”). Although the <rainwraps.com> domain name was initially created on July 5, 2017, Complainant asserts that it was purchased by the Respondent some time in 2019 and that the domain name began redirecting to Respondent’s own website after August of 2019.
Respondents has no rights or legitimate interests in the <rainwraps.com> domain name as Respondent is not commonly known by the disputed domain name nor has Respondent been licensed, authorized, or otherwise permitted by Complainant to use Complainant’s mark. Furthermore, Respondent’s use is not a bona fide offering of goods or services, nor a legitimate noncommercial or fair use, as Respondent, a former customer of the Complainant’s, is using the disputed domain name to redirect Internet users to its own website which offers competing goods for sale and which makes no mention of the words “rainraps” or “rainwraps,” or of the <rainwraps.com> domain name.
Respondent registered and used the <rainwraps.com> domain name in bad faith. Specifically, Respondent is disrupting Complainant’s business by misleading and redirecting Internet users to a Respondent’s own competing website. Additionally, as a former customer of the Complainant’s Respondent had actual knowledge of Complainant’s rights in the RAINRAPS mark at the time it registratered the disputed domain name.
B. Respondent
In its Response, Respondent states that, at the time it purchased the disputed domain name, it was unaware of the Uniform Domain Name Dispute Resolution Policy (UDRP). It further acknowledges the factual and legal grounds presented in the Complaint and agrees to transfer registration of the <rainwraps.com> domain name to Complainant. Finally, it agrees to transfer two additional domain names to Complainant, namely, <rainraps.net> and <rainwraps.net>.
Respondent has consented to voluntarily transfer the disputed domain name to Complainant. As such, no formal findings under the Policy will be made.
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.
Preliminary Issue: Respondent’s Consent To Transfer
The Forum received a Response from Respondent after having served it with the Complainant. In it, Respondent consents to voluntarily transfer the <rainwraps.com> domain name to Complainant. However, after the initiation of this proceeding, the concerned Registrar placed a hold on Respondent’s account and therefore Respondent cannot, on its own, transfer the disputed domain name while this proceeding is still pending. As a result, the Panel finds that in a circumstance such as this, where Respondent has not contested the transfer of the disputed domain name but instead agrees to transfer the domain name to Complainant, the Panel may decide to forego the traditional UDRP analysis and order an immediate transfer of the <rainwraps.com> domain name. See 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 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.”); 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.”).
In its Response, dated January 5, 2020, the Respondent states: “At the time of domain purchase, Respondent was unaware of the Uniform Domain Name Dispute Resolution Policy (UDRP). Respondent acknowledges the factual and legal grounds presented in Complaint. Respondent agrees to transfer registration of <rainwraps.com>.” Therefore, the Panel has determined that it is not necessary to analyze the present case under the elements of the UDRP and it may be ordered that the disputed domain name be transferred to Complainant upon the Respondent’s voluntary consent.
The Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <rainwraps.com> domain name be TRANSFERRED from Respondent to Complainant.[i]
Steven M. Levy, Esq., Panelist
Dated: January 14, 2020
[i] It should be noted that the Response also states “As a demonstration of continued good faith, Respondent agrees to transfer two (2) below mentioned domain names to Complainant: a) <rainraps.net> b) <rainwraps.net>”. However, as these two additional domain names are not asserted in the Complaint, it is not within the jurisdiction of this Panel to order that they be transferred. Of course, the parties themselves are free to arrange for the private transfer of these two domain names.
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