Brasfield & Gorrie, L.L.C. v. Rachael Bryce
Claim Number: FA1906001848933
Complainant is Brasfield & Gorrie, L.L.C. (“Complainant”), represented by Robert C. Anderson of Balch & Bingham LLP, Alabama, USA. Respondent is Rachael Bryce (“Respondent”), Texas, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <brasfield--gorrie-llc.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 June 20, 2019; the Forum received payment on June 20, 2019.
On June 21, 2019, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <brasfield--gorrie-llc.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 June 24, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 15, 2019 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@brasfield--gorrie-llc.com. Also on June 24, 2019, 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.
Not having received a formal response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default. Respondent did however send an e-mail to the Forum, see below.
On July 19, 2019, 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 operates in the construction industry. Complainant has rights in the BRASFIELD & GORRIE mark based upon its registration of the mark in the United States in 2000.
Complainant alleges that the disputed domain name is identical or confusingly similar to its BRASFIELD & GORRIE mark because it merely adds multiple hyphens and the term “llc.”
According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain name. Respondent is not authorized or licensed to use Complainant’s BRASFIELD & GORRIE mark and there is no evidence to suggest that the Respondent listed in the WHOIS record is commonly known by the disputed domain name. Respondent fails to use the disputed domain name in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use because the disputed domain name’s resolving webpage is blank and the disputed domain name has been used to send phishing e-mails.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent uses the disputed domain name to engage in a phishing scheme via e-mail by soliciting employment applications.
B. Respondent
Respondent failed to submit a formal Response in this proceeding. In its e-mail to the Forum, Respondent stated: “Regarding the written notice of complaint Brasfield & Gorrie, LLC v. Rachael Bryce that I received by letter, but not by email, I do not own the domain name “brasfield--gorrie-llc.com” and have never tried to register it. None of the email addresses to which the annex were sent per the mailed written notice letter are mine. It appears someone has used my contact information in connection with the registration without my approval. I do not object to it being transferred to the Complainant.”
For the reasons given 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.”).
PRELIMINARY ISSUE: IDENTITY THEFT
Respondent contends that it has been the victim of identity theft. According to Policy ¶ 4(j), “[a]ll decisions under this Policy will be published in full over the Internet, except when an Administrative Panel determines in an exceptional case to redact portions of its decision.” In Wells Fargo & Co. v. John Doe as Holder of Domain Name <wellzfargo.com>, FA 362108 (Forum Dec. 30, 2004) and Wells Fargo & Co. v. John Doe as Holder of Domain Name <wellsfargossl>, FA 453727 (Forum May 19, 2005), the panels omitted the respondents’ personal information from the decisions, pursuant to Policy ¶ 4(j), in an attempt to protect the respondents who claimed to be victims of identity theft from becoming aligned with acts the actual registrants appeared to have sought to impute to the respondents.
However, according to Forum Supplemental Rule 15(b), “All requests pursuant to Policy paragraph 4(j) and Rule 16(b) to have a portion of the decision redacted, must be made in the Complaint, the Response, or an Additional Submission that is submitted before the Panel’s decision is published.” (emphasis added). Rule 1 defines “respondent” as “the holder of a domain-name registration against which a complaint is initiated;” and Forum Supplemental Rule 1(d) further defines “the holder of a domain-name registration” as “the single person or entity listed in the WHOIS registration information at the time of commencement.” The Panel notes precedent which holds the registrar-confirmed registrant of a disputed domain (per the WHOIS at commencement of the proceeding) the proper respondent, notwithstanding the possibility that said respondent’s identity was stolen. See, e.g., Banco Bradesco S/A v. Gisele Moura Leite, D2014-0414 (WIPO Apr. 30, 2014).
In the instant case, neither Complainant nor Respondent have requested redaction. Consequently, the Panel finds that it is not warranted to redact Respondent’s name and location from the Panel’s decision.
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 <brasfield--gorrie-llc.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: June 19, 2019
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