Brink’s Network, Incorporated v. Baylen Latona
Claim Number: FA2106001950301
Complainant is Brink’s Network, Incorporated (“Complainant”), represented by Brad R Newberg of McGuireWoods LLP, Virginia, USA. Respondent is Baylen Latona (“Respondent”), Indiana, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <brinks.biz>, registered with GoDaddy.com, 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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 9, 2021; the Forum received payment on June 9, 2021.
On June 10, 2021, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <brinks.biz> 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 June 11, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 1, 2021 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@brinks.biz. Also on June 11, 2021, 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 timely, formal response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default. Respondent did correspond by email on June 11 and 15, 2021, see below.
On July 6, 2021, 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 global leader in total cash management, route-based secure logistics and payment solutions, including cash-in-transit, ATM services, cash management services, and international transportation of valuables. Established in 1859, Complainant has grown from a Chicago-based outfit to a global brand synonymous with security and trust. Today, Complainant serves customers in 100 countries from 1,200 facilities and using over 13,500 of its well-recognized vehicles. Complainant has rights in the BRINKS mark through its registration in the United States in 1957.
Complainant alleges that the disputed domain name is identical or confusingly similar to its mark as it incorporates the mark in its entirety and merely adds the “.biz” generic top-level domain (“gTLD”).
According to Complainant, Respondent lacks rights and legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed Respondent to use its BRINKS mark in the disputed domain name. Respondent does not use the disputed domain name for any bona fide offering of goods or services, nor any legitimate noncommercial or fair use, but instead hosts parked, competing pay-per-click links on the disputed domain name’s resolving website.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent disrupts Complainant’s business for commercial gain by hosting competing pay-per-click links on the disputed domain name’s resolving website. Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the BRINKS mark.
B. Respondent
Respondent failed to submit a timely, formal Response in this proceeding. In its emails to the Forum, Respondent states, in pertinent part: “Wow! I am contacting Go daddy and having them terminate the domain. I didn't know I was doing anything wrong, I just made the website for my music. I have never sold music, clothing, or used any of the TM Brinks Logos. I haven't signed into GoDaddy in months, the domain was on auto renew and I don't use it.” And: “I will gladly give you the brinks.biz domain. I never used it and never planned on it.”
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, 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 <brinks.biz> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: July 6, 2021
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