Guaranty Bank v.
Claim Number: FA0708001059473
PARTIES
Complainant is Guaranty Bank (“Complainant”), represented by Sherri
L. Eastley of Wong Cabello, LLP, PO Box 685108, Austin,
TX, 78768-5108. Respondent is Texas
International Property Associates (“Respondent”), represented by Gary
Wayne Tucker of the Law Office of Gary Wayne Tucker,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <guarantygroupbank.com>, registered
with Compana,
LLC.
PANEL
The undersigned certifies that she has acted independently and
impartially and that to the best of her knowledge she has no known conflict in
serving as Panelist in this proceeding.
Hon. Carolyn Marks Johnson sits as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
electronically August 9, 2007; the
National Arbitration Forum received a hard copy of the Complaint August 9, 2007.
On August 21, 2007, Compana, LLC confirmed by e-mail to the
National Arbitration Forum that the <guarantygroupbank.com> domain name
is registered with Compana, LLC and that
the Respondent is the current registrant of the name. Compana, LLC
verified that Respondent is bound by the Compana,
LLC registration agreement and thereby has agreed to resolve domain-name
disputes brought by third parties in accordance with ICANN’s Uniform Domain
Name Dispute Resolution Policy (the “Policy”).
On August 23, 2007, a Notification
of Complaint and Commencement of Administrative Proceeding (the “Commencement
Notification”), setting a deadline of September 12, 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@guarantygroupbank.com by
e-mail.
The Forum received a timely Response and determined it to be complete September 12, 2007.
No additional filings were made by the parties.
On September 25, 2007, pursuant to Complainant’s
request to have the dispute decided by a single-member Panel, the National
Arbitration Forum appointed Hon. Carolyn Marks Johnson as Panelist.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A.
Complainant
makes the following allegations in this proceeding:
1.
Respondent
filed a domain name that is confusingly similar to Complainant’s well-known
GUARANTY mark.
2.
Respondent
has no rights to or legitimate interests in a domain name containing in its
entirety Complainant’s mark.
3.
Respondent
registered and used the domain name in bad faith.
B.
Respondent
makes the following points in response:
1.
Respondent
urges that Complainant never raised the issue with Respondent prior to
initiating this action.
2.
Respondent
does not admit “to the three elements of 4(a) of the policy.”
3.
Respondent
makes “an offer of ‘unilateral consent to transfer’” and “Respondent agrees to
the relief requested by the Complainant and will, upon order of the Panel, do
so.”
DISCUSSION
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.”
Paragraph 4(a) of the Policy requires Complainant to 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 the Respondent
is identical or confusingly similar to a trademark or service mark in which the
Complainant has rights;
(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.
Preliminary
Procedural Issue: Respondent Agrees to Transfer
Respondent agreed to a ‘unilateral transfer’ of the <guarantygroupbank.com> domain name registration from Respondent to Complainant in Respondent’s Response to the Complaint. Respondent also asserted a willingness to forego further action.
Respondent did not contest
Complainant’s allegations regarding the disputed
domain name, although Respondent noted that his consent to the transfer was not
to be taken as an admission as to the required elements.
Where
Respondent agrees to a transfer and does not contest any of Complainant’s
allegations by refuting them, the Panel may forego the traditional UDRP
analysis and order the immediate transfer of the domain name. See Boehringer Ingelheim Int’l GmbH v.
Modern Ltd. – Cayman Web Dev., FA 133625 (Nat. Arb. Forum Jan. 9, 2003)
(transferring the domain name registration where the respondent stipulated to
the transfer); see also Malev Hungarian Airlines, Ltd. v. Vertical Axis Inc.,
FA 212653 (Nat Arb. Forum Jan. 13, 2004) (“In this case, the parties have both
asked for the domain name to be transferred to the Complainant . . . 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
also Disney Enters., Inc. v. Morales, FA 475191 (Nat. Arb. 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.”).
FINDINGS
The Panel finds that Respondent agreed to the relief requested by
Complainant.
Based on the above, the Panel foregoes traditional UDRP
analysis and Orders the transfer. See Royal Bank of Scot. Group plc v. rbspayments,
FA 728805 (Nat. Arb. Forum July 7, 2006) (transferring the
<rbspayments.com> domain name where the respondent agreed to the transfer
and did not contest any of the complainant’s allegations).
DECISION
Having established an agreement to transfer, the Panel concludes that
relief shall be GRANTED.
Accordingly, it is Ordered that the <guarantygroupbank.com> domain name
be TRANSFERRED from Respondent to Complainant.
Hon. Carolyn Marks
Johnson, Panelist
Dated: October 9, 2007.
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