Argo Design, LLC v. Elian Savodivker
Claim Number: FA2207002004773
Complainant is Argo Design, LLC (“Complainant”), represented by Giulio E. Yaquinto of Pirkey Barber PLLC, Texas, USA. Respondent is Elian Savodivker (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <argodsgn.com>, registered with Launchpad.com 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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 19, 2022; the Forum received payment on July 19, 2022.
On July 19, 2022, Launchpad.com Inc. confirmed by e-mail to the Forum that the <argodsgn.com> domain name is registered with Launchpad.com Inc. and that Respondent is the current registrant of the name. Launchpad.com Inc. has verified that Respondent is bound by the Launchpad.com 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 July 22, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 11, 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@argodsgn.com. Also on July 22, 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 August 16, 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 a design consultancy founded in Austin, Texas that harnesses technological innovation to create cutting edge products. Complainant’s work spans all phases of product development, from conceptualization to manufacturing. For example, Complainant partnered with one client to create a smart home security system with IoT components that include a doorbell and cameras which users can monitor from their cell phone or personal device. Complainant is also a leader in user interface and user experience design. Indeed, DreamWorks is currently leveraging Complainant’s expertise in user interface and user experience design to create interfaces for a software suite that helps animation artists and technical directors manage the millions of digital assets in film productions. Complainant has marketed its design services through a website at the domain <argodesign.com> for approximately ten years. Complainant asserts rights in the ARGODESIGN mark based upon its registration in the United States in 2014.
Complainant alleges that the disputed domain name is confusingly similar to its ARGODESIGN trademark because it incorporates the mark in its entirety, but misspells or abbreviates “DESIGN” as “DSGN” and adds the generic top-level domain name (“gTLD”) “.com” to form the disputed domain name. Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent does not have rights or legitimate interests in the disputed domain name. Respondent is not licensed or authorized to use Complainant’s ARGODESIGN mark and is not commonly known by the disputed domain name. Respondent does not use the disputed domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, Respondent uses the disputed domain name to offer competing products and services. The resolving website promotes its competing services using advertising copy that was lifted without authorization from Complainant’s own website at <argodesign.com>. It also appropriates content from the websites of third-party designers. Respondent is also impersonating at least one third-party individual. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent registered and uses the disputed domain name to attract for commercial gain by offering competing products and services. Respondent registered the disputed domain name using a proxy service or is otherwise attempting to conceal its identity. Respondent registered the disputed domain with actual knowledge of Complainant’s trademark rights. Finally, Respondent engages in typosquatting. 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: “this is [name redacted] on behalf of [Respondent], my understanding is that the company is being shutting down and he can agree to abandon the name but can't cover any cost of the proceeding.”
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 <argodsgn.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: August 16, 2022
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