Monash University v. Kristian Harcourt, College Down Under, Inc.
Claim Number: FA1510001641006
Complainant is Monash University (“Complainant”), represented by Flip Petillion, Europe. Respondent is Kristian Harcourt, College Down Under, Inc. (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <monashuniversity.us>, 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.
Darryl C. Wilson, as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 6, 2015; the Forum received payment on October 6, 2015.
On October 6, 2015, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <monashuniversity.us> 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 the U.S. Department of Commerce’s usTLD Dispute Resolution Policy (the “Policy”).
On October 7, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 27, 2015 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@monashuniversity.us. Also on October 7, 2015, 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.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On November 2, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Darryl C. Wilson, 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 to the usTLD Dispute Resolution Policy ("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 usTLD Policy, usTLD 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 uses the MONASH mark in connection with its educational services. Complainant has registered the MONASH mark with the Canadian Intellectual Property Office (“CIPO”) (Reg. No. TMA832836, registered September 26, 2012), demonstrating rights in the mark. Respondent’s <monashuniversity.us> domain name is confusingly similar to the MONASH mark as the mark is incorporated entirely and the “university” generic term and “.us” country-code top-level domain (“ccTLD”) are appended.
Respondent has no rights or legitimate interests in the <monashuniversity.us> domain name. Respondent is not commonly known by the disputed domain name. Further, Respondent’s <monashuniversity.us> domain name resolves to a parking page, evincing neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use. Additionally, the links contained on the parked website redirect users to direct competitors of Complainant.
Respondent registered or used the <monashuniversity.us> domain in bad faith. First, Respondent has included a general offer for sale (“Would you like to buy this domain?”) on the resolving website, demonstrating Policy ¶ 4(b)(i) bad faith registration or use. Secondly, Respondent has included directly competing pay-per-click hyperlinks on the resolving website, imputing bad faith under Policy ¶¶ 4(b)(iii) and (iv). Lastly, Respondent registered or used the disputed domain with actual knowledge of the MONASH mark and Complainant’s rights therein.
B. Respondent
Respondent failed to submit a formal Response in this proceeding.
Complainant is Monash University of Victoria, Australia. Complaint is the owner of numerous international registrations for the marks MONASH and MONASH UNIVERSITY as well as related Monash University based marks constituting the family of MONASH marks. Complainant has used its mark continuously since at least as early as 2012 in connection with its provision of educational services and related goods.
Respondent is Kristian Harcourt, College Down Under, Inc., of Santa Barbara, CA, USA. Respondent’s registrar’s address is listed as Scottsdale, AZ, USA.
In a document designated “Correspondence-Respondent,” it is stated, “We will gladly release the domain to Monash University.” The Panel notes that the <monashuniversity.us> domain name was registered on or about September 29, 2014.
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."
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.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Preliminary Issue: Consent to Transfer
Respondent stated that it consents to transfer the <monashuniversity.us> domain name to Complainant. However, after the initiation of this proceeding, GoDaddy.com, LLC placed a hold on Respondent’s account and therefore Respondent cannot transfer the disputed domain name while this proceeding is still pending. Under the present circumstances the Panel finds, where Respondent has not contested the transfer of the disputed domain name but instead agrees to transfer the domain name to the Complainant, the Panel may forego the traditional UDRP analysis and order an immediate transfer of the <monashuniversity.us> 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.”).
Respondent consents to transfer.
Respondent consents to transfer.
Respondent consents to transfer.
Because the Respondent consents to transfer the Panel concludes that Complainant’s requested relief shall be GRANTED.
Accordingly, it is Ordered that the <monashuniversity.us> domain name be IMMEDIATELY TRANSFERRED from Respondent to Complainant.
Darryl C. Wilson, Panelist
Dated: November 16, 2015
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