Westmore · UDRP DecisionBalmainarmy.com
The Panel ordered transfer of balmainarmy.com based on the Respondent's express consent to transfer. Relying on WIPO Overview 2.0, paragraph 4.13, and The Cartoon Network LP, LLLP v. Mike Morgan, WIPO Case No. D2005-1132, the Panel proceeded without deciding the three substantive UDRP elements. The unsuccessful settlement process during the suspension period did not negate the Respondent's consent.
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This decision illustrates the consent-to-transfer procedure: an unequivocal respondent communication can support an immediate transfer order even when a contemplated settlement is not completed. Because the Panel did not reach the substantive UDRP elements, the decision should not be treated as authority that the domain was confusingly similar, that the Respondent lacked rights or legitimate interests, or that bad faith existed.
Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.
WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Pierre Balmain S.A. v. Domains By Proxy, LLC / Daniel Phillips Case No. D2015-0189 1. The Parties The Complainant is Pierre Balmain S.A. of Paris, France, represented by UGGC Avocats, China. The Respondent is Domains By Proxy, LLC of Scottsdale, Arizona, United States of America (“United States”) / Daniel Phillips of Dallas, Texas, United States. 2. The Domain Name and Registrar The disputed domain name <balmainarmy.com> is registered with GoDaddy.com, LLC (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 5, 2015. On February 5, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 6, 2015, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on March 3, 2015 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on March 6, 2015. The Center verified that the Complaint together with the amended Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”). In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on March 12, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was April 1, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 2, 2015. The Respondent filed an email with the Center on April 2, 2015, offering to transfer the disputed domain name. Subsequently, the Complainant requested a suspension of the proceedings on April 10, 2015. Hereupon, the Center suspended the procedure until May 10, 2015. As no settlement was reached, the Complainant requested the re-institution of the proceedings on May 10, 2015. The proceedings were re-instituted on May 11, 2015. The Center appointed Flip Jan Claude Petillion as the sole panelist in this matter on May 13, 2015. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7. 4. Factual Background The Complainant is a French company active in the fashion and clothing sector. The Complainant is the holder of, inter alia , the following registered trademarks, which it uses in connection with its activities: - , international trademark registered on April 25, 1980 with registration number 451759 in classes 6, 9, 11, 14, 16, 18, 20, 24, 25, 27 and 34; - , international trademark registered on April 10, 2001 with registration number 758712 in classes 9, 14, 16, 18, 20, 21, 22, 23, 24, 25, 26, 27, 28, 30, 33 and 34. The disputed domain name <balmainarmy.com> was created on December 12, 2014 and is registered by the Respondent. The disputed domain name resolves to a web page containing a picture of trees and a sentence mentioning the term “balmain”. 5. Parties’ Contentions A. Complainant The Complainant considers the disputed domain name to be confusingly similar to trademarks and service marks in which it claims to have rights. The Complainant further claims that the Respondent has no rights or legitimate interests in respect of the disputed domain name. According to the Complainant, the Respondent has not used the disputed domain name in connection with a legitimate use. Also, according to the Complainant, the Respondent has not been commonly known by the disputed domain name. Finally, the Complainant considers that the domain name was registered and being used in bad faith. B. Respondent The Respondent did not reply to the Complainant’s contentions, but has offered to transfer the disputed domain name to the Complainant in an email communication filed with the Center on April 2, 2015. 6. Discussion and Findings Paragraph 4(a) of the Policy requires that, in order to obtain the transfer of the disputed domain name the Complainant must prove: (i) The domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and (ii) The Respondent has no rights or legitimate interests with respect to the domain name; and (iii) The domain name has been registered and is being used in bad faith. However, the Panel notes that consent to transfer by the Respondent can provide a basis for an order for transfer without a need for consideration of the UDRP grounds. Taking into account the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”), paragraph 4.13 and The Cartoon Network LP, LLLP v. Mike Morgan , WIPO Case No. D2005-1132 , the Panel finds that when the Complainant seeks transfer of the disputed domain name, and the Respondent agrees to transfer, the Panel may proceed immediately to make an order for transfer. In this case, the Center received only one communication from the Respondent, in an email addressed to counsel of Complainant and stating that it would like to transfer the disputed domain name to the Complainant. The Panel finds that it undoubtedly demonstrates the Respondent’s consent to transfer the disputed domain name. In the Panel’s view, the fact that no settlement agreement could be executed within the suspension period does not affect the Respondent’s consent to the transfer. Accordingly, the Panel immediately orders the transfer of the disputed domain name. 7. Decision For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <balmainarmy.com> be transferred to the Complainant. Flip Jan Claude Petillion Sole Panelist Date: May 27, 2015
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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