The RCS Network v. Meghan Kehoe
Claim Number: FA2205001996190
Complainant is The RCS Network (“Complainant”), represented by Jonathan Loeb of Rich May, P.C., Massachusetts, USA. Respondent is Meghan Kehoe (“Respondent”), Massachusetts, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <masssavewindows.com>, 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 May 13, 2022; the Forum received payment on May 13, 2022.
On May 16, 2022, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <masssavewindows.com> 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 May 16, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 6, 2022 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@masssavewindows.com. Also on May 16, 2022, 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 email to the Forum, see below.
On June 13, 2022, 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 an unincorporated collaborative association of Massachusetts utility companies and energy efficiency services providers. Complainant uses its MASS SAVE trademark in connection with marketing and educational services pertaining to the promotion of energy management and efficiency through consumer and contractor education. The word MASS in the trademark refers to Massachusetts, the state where the Complainant is located and whose residents it serves. The word SAVE in the trademark refers to the energy saving services and benefits that Complainant promotes. Among the services and benefits offered by Complainant on its <masssave.com> website, and through other channels, are no-cost home energy audits for Massachusetts residents, and information regarding rebates and incentives available to Massachusetts residents on their purchases of energy-efficient appliances and other goods. Complainant offers such services and benefits in furtherance of objectives established for Massachusetts utility companies by Massachusetts law. Complainant has rights in the MASS SAVE mark through its registration in the United States in 2006.
Complainant alleges that the disputed domain name is identical or confusingly similar to its MASS SAVE mark because it incorporates the entirety of the mark, merely deleting a space, and adding the descriptive term “windows” and the generic Top Level Domain (gTLD) “.com”. Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent lacks rights or legitimate interest 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 MASS SAVE mark in any way. Respondent does not use the disputed domain name in connection with any bona fide offering of goods or services, nor for a legitimate non-commercial or fair use. Rather, the disputed domain name resolves to a parked webpage that displays pay-per-click advertising hyperlinks some of which are for products and services that compete with those of Complainant. Complainant cites UDRP precedents to support its position.
Respondent registered and uses the disputed domain name in bad faith because it uses the confusingly similar nature of the disputed domain name to both disrupt Complainant’s business and attract Internet users for commercial gain by hosting competing hyperlinks on the resolving webpage. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding. In its email to the Forum, Respondent states, in pertinent part: “… I never used the domain so there is no page to take down. I cancelled the domain and my GoDaddy service for it so I don’t have any association with that domain. … I do not want any further activity regarding this domain. … I paid $12 for the domain, never did anything with it, and was refunded because it was not used and I cancelled it per the guidance in your documentation. I have satisfied the request from your team and do not want any further correspondence other than telling me this is all set and closed out (please).”
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."
The Panel interprets Respondent’s email to the Forum as consent to transfer the disputed domain name. Thus, 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 <masssavewindows.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: June 13, 2022
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