Sheila Kelley v. Tim Kelly
Claim Number: FA0706000999572
PARTIES
Complainant is Sheila Kelley (“Complainant”), represented by Laura
M. Franco, of Manatt, Phelps & Phillips LLP,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <sheilakelly.com>, registered with Go Daddy
Software, Inc.
PANEL
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.
Terry F. Peppard as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
electronically on June 5, 2007; the
National Arbitration Forum received a hard copy of the Complaint on June 7, 2007.
On June 5, 2007, Go Daddy Software, Inc. confirmed by e-mail to
the National Arbitration Forum that the <sheilakelly.com> domain name is
registered with Go Daddy Software, Inc.
and that the Respondent is the current registrant of the name. Go Daddy
Software, Inc. has verified that Respondent is bound by the Go Daddy Software, Inc. registration agreement
and has thereby agreed to resolve domain-name disputes brought by third parties
in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the
“Policy”).
On June 7, 2007, a Notification
of Complaint and Commencement of Administrative Proceeding (the “Commencement
Notification”), setting a deadline of June 27, 2007 by which Respondent could
file a Response to the Complaint, was transmitted to Respondent via e-mail,
post and fax, to all entities and persons listed on Respondent’s registration
as technical, administrative and billing contacts, and to postmaster@sheilakelly.com by e-mail.
A timely Response was received and determined to be complete on June 22, 2007.
On June 27, 2007, pursuant to Complainant’s
request to have the dispute decided by a single-member Panel, the National
Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
Complainant is a noted actress, writer and producer.
Complainant’s famous name and celebrity have given rise to trademark
rights in the name and mark SHEILA KELLEY under the common law.
Since at least 2001 Complainant has used this mark in connection with
the marketing of dance and exercise instruction services, instructional
materials, videos and books.
Respondent registered the disputed domain name on March 26, 2002.
Respondent is not commonly known by the disputed domain name.
Respondent is a direct business competitor of Complainant in dance
instruction and related businesses.
Respondent’s domain name is confusingly similar to Complainant’s mark.
Respondent is not making any legitimate or fair use of the disputed
domain name.
Respondent has no rights or legitimate interests in respect of the
disputed domain name.
Respondent has registered and uses the disputed domain name in bad
faith.
B. Respondent
Respondent's Response to the Complaint herein recites, in pertinent part,
as follows:
[H]e
will not further contest this matter, and will cooperate in the transfer of the
domain name in question to Complainant….
DISCUSSION
Paragraph 4(a) of the Policy requires that, in the ordinary course,
Complainant must prove each of the following to obtain an order that a domain
name be transferred:
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 or legitimate interests in respect of the domain name; and
iii.
the
domain name has been registered and is being used 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, Policy ¶ 3(a) provides for the transfer of a domain name registration upon the written instructions of the parties to a UDRP proceeding without the need for otherwise required findings and conclusions. See Malev Hungarian Airlines, Ltd. v. Vertical Axis Inc., FA 212653 (Nat. Ar. Forum Jan. 13, 2004); see also Disney Enterprises, Inc. v. Morales, FA 475191 (Nat. Arb. Forum Jun. 24, 2005).
DECISION
The parties have effectively agreed in writing to a transfer of the
subject domain name from Respondent to Complainant without the need for further
proceedings.
It is therefore Ordered that the <sheilakelly.com> domain name be TRANSFERRED
forthwith from
Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: July 3, 2007
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