Awesome Motive, Inc. v. Erica Franz / Awesome Motive Incorporated
Claim Number: FA2107001954096
Complainant is Awesome Motive, Inc. (“Complainant”), which is represented by Matthew G. McKinney of Allen, Dyer, Doppelt and Gilchrist, P.A., Florida, USA. Respondent is Erica Franz/Awesome Motive Incorporated (“Respondent”), Florida, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <awesomemotive.org>, registered with GoDaddy.com, LLC.
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 7, 2021; the Forum received payment on July 7, 2021.
On July 8, 2021, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <awesomemotive.org> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the domain name. GoDaddy.com, LLC has likewise 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 July 8, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 28, 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@awesomemotive.org. Also, on July 8, 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 the attention of all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no formal response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default. Respondent has, however, submitted email correspondence, which will be discussed below.
On July 30, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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 a formal response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant makes and markets downloadable computer software for increasing traffic to websites.
Complainant has rights in the AWESOME MOTIVE mark and has filed an application with the United States Patent and Trademark Office (“USPTO”) (Application Serial No. 90,525,570, filed Feb. 11, 2021) for the registration of that mark.
Respondent registered the domain name <awesomemotive.org> on or about June 16, 2021.
The domain name is substantively identical to Complainant’s AWESOME MOTIVE mark.
Respondent has not been commonly known by the domain name.
Complainant has not licensed or otherwise authorized Respondent to use its AWESOME MOTIVE mark in the domain name.
Respondent does not use the domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use.
Instead, Respondent employs the domain name to pass itself off as Complainant in email messages.
Respondent lacks both rights to and legitimate interests in the domain name.
Respondent is likely offering the domain name for sale.
Respondent’s use of the domain name disrupts Complainant’s business.
Respondent both registered and now uses the domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding in keeping with the requirements of the Policy and its attendant Rules. However, in an e-mail message addressed to the Forum, Respondent has recited as follows: “We are willing to Delete [sic] the domain from our godaddy account so that the other company [Complainant] can take its ownership, we are totally fine with that ….”
DISCUSSION
Paragraph 4(a) of the Policy requires that, to obtain from a Panel an order that a domain name be transferred, Complainant must, in the ordinary course, prove each of the following:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights;
ii. Respondent has no rights to or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used by Respondent in bad faith.
Notwithstanding the foregoing, Paragraph 15(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (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.”
Further, Paragraph 14(b) of the Rules provides that, where a party fails to comply with requirements laid on by the Rules, the Panel may draw such inferences from that failure as it considers appropriate.
DECISION
It appears from the record that Respondent does not contest the material allegations of the Complaint. It further appears that Respondent does not object to Complainant’s request for the transfer to it of the subject domain name as prayed for in the Complaint, but has instead expressed its willingness to have such a transfer occur, so that the parties have effectively agreed to the transfer of the subject domain name from Respondent to Complainant without the need for further proceedings. Therefore, in the exceptional circumstances here presented, we conclude that no worthwhile purpose would be served by a rendition of findings otherwise customary in proceedings of this sort. See, for example, The Cartoon Network LP, LLLP v. Mike Morgan, D2005-1132, (WIPO January 5, 2006):
A genuine unilateral consent to transfer by the Respondent provides a basis for an immediate order for transfer without consideration of the paragraph 4(a) elements. Where the Complainant has sought transfer of a disputed domain name, and the Respondent consents to transfer, then pursuant to paragraph 10 of the Rules the Panel can proceed immediately to make an order for transfer. This is clearly the most expeditious course (see Williams-Sonoma, Inc. v. EZ-Port, WIPO Case No. D2000-0207).
Accordingly, it is Ordered that the domain name <awesomemotive.org> be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: August 2, 2021
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