LKN Communications, Inc. d/b/a ACN, Inc. v.
Long Beach Technology
Claim Number: FA0911001295449
PARTIES
Complainant is LKN Communications, Inc. d/b/a ACN, Inc. (“Complainant”), represented by Henry B. Ward, III, of Moore & Van Allen PLLC, North Carolina, USA. Respondent is Long Beach Technology (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <myacnvideophones.com>,
registered with Godaddy.com, Inc.
PANEL
The undersigned certifies that he or she has acted independently and
impartially and to the best of his or her knowledge has no known conflict in
serving as Panelist in this proceeding.
Calvin A. Hamilton as
Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
electronically on November 19, 2009; the National Arbitration Forum received a
hard copy of the Complaint on November 20, 2009.
On November 19, 2009, Godaddy.com, Inc. confirmed by e-mail to the
National Arbitration Forum that the <myacnvideophones.com>
domain name is registered with Godaddy.com, Inc. and that the Respondent is the
current registrant of the name. Godaddy.com,
Inc. has verified that Respondent is bound by the Godaddy.com, 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 November 23, 2009, a Notification of Complaint and Commencement of
Administrative Proceeding (the “Commencement Notification”), setting a deadline
of December 14, 2009 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@myacnvideophones.com by
e-mail.
A timely Response was received and determined
to be complete on December 1, 2009.
On December 7, 2009,
pursuant to Complainant’s request to have the dispute decided by a single-member Panel and in light of Respondent’s failure to object to a single-member
Panel, the National Arbitration Forum appointed Calvin A. Hamilton as Panelist.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from
Respondent to Complainant.
PRELIMINARY
ISSUES
Complainant contends that it has acquired a protectable interest in the
ACN mark, as the world’s largest direct selling
telecommunications service provider and distributor of video phones.
Complainant has provided evidence that it owns 5 trademark registration
variations of the ACN mark. Complainant contends that: (1) Respondent’s <myacnvideophones.com> domain
name is confusingly similar to Complainant’s ACN Mark, (2) Respondent has no
rights or legitimate interest in the domain name and (3) Respondent has
registered and used the domain name in bad faith.
Respondent
has expressly agreed to transfer the domain name to Complainant and requests
that this be done immediately. Respondent has further stated that it wishes to
refrain from participating in the ICANN arbitration procedures and notes that
the first notice of Complainant’s interest in the disputed domain name was the
notification of the Complaint. Respondent notes that it acquired the domain
name with the purpose of assisting in the sale of Complainant’s products as an
independent representative, but that he opted not to join Complainant as an
independent representative. Respondent therefore agrees to the transfer of the
domain name.
However,
Respondent is unable to transfer the disputed domain name to Complainant after
the initiation of the ICANN procedure because GoDaddy.com, Inc, the registrar
of the domain name has placed a hold on Respondent’s account. This hold will be
in place until the resolution of this procedure.
Given that Respondent has not contested the transfer of the domain name in question and that Respondent has specifically requested that the domain name be transferred this Panel recognizes that it is obliged to follow the will of the parties. See Malev Hungarian Airlines, Ltd. v. Vertical Axis Inc., FA 212653 (Nat Arb. Forum Jan. 13, 2004). The right to consent to the will of the parties has been acknowledged by previous ICANN panels. See Boehringer Ingelheim Int’l GmbH v. Modern Ltd. – Cayman Web Dev., FA 133625 (Nat. Arb. Forum Jan. 9, 2003); see also Disney Enters., Inc. v. Morales, FA 475191 (Nat. Arb. Forum June 24, 2005). Given that the will of both parties is to transfer the domain name to Complainant this Panel finds that in the interests of efficiency, expediency and the mutual consent of the parties, that it should forego the UDRP analysis and therefore order the transfer of the domain name to Complainant.
DECISION
Accordingly, it is Ordered that the <myacnvideophones.com>
domain name be TRANSFERRED from Respondent to Complainant.
Calvin A. Hamilton, Panelist
Dated: December 18, 2009
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