eHarmony, Inc. v. Justin Trivett / JUS TIN Pty Ltd (ATF The Trivett Family Trust)
Claim Number: FA1602001660085
Complainant is eHarmony, Inc. (“Complainant”), represented by Lisa Greenwald-Swire of Fish & Richardson, P.C., United States of America. Respondent is Justin Trivett / JUS TIN Pty Ltd (ATF The Trivett Family Trust) (“Respondent”), Australia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <eharmony.social>, registered with Crazy Domains FZ-LLC.
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 8, 2016; the Forum received payment on February 8, 2016.
On February 9, 2016, Crazy Domains FZ-LLC confirmed by e-mail to the Forum that the <eharmony.social> domain name is registered with Crazy Domains FZ-LLC and that Respondent is the current registrant of the name. Crazy Domains FZ-LLC has verified that Respondent is bound by the Crazy Domains FZ-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 February 10, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 1, 2016 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@eharmony.social. Also on February 10, 2016, 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.
Respondent submitted three short E-Mails on February 10, 2016, and a fourth short E-Mail on February 10, 2016. Respondent did not submit a formal response.
Having received no formal response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On March 7, 2016, 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 uses the EHARMONY mark in connection with Complainant’s business as an online dating service. Complainant has registered the EHARMONY trademark in the US with rights dating back to 2003.
According to Complainant, the disputed domain name is identical to the EHARMONY mark as it incorporates the mark in its entirety and adds the generic top-level domain (“gTLD”) “.social.”
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the domain name. Further, Respondent’s use of the disputed domain name constitutes neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use. Rather, the domain name has, at various times, resolved to a website containing hyperlinks to competitors’ sites, redirection to adult-oriented sites, and redirection to unrelated sites, as well as displaying viruses on user’s computers.
Further, says Complainant, Respondent is using the disputed domain name in bad faith. Respondent attempted to attract Internet users to its site to disrupt the business of Complainant, and for commercial gain by creating confusion as to the source, sponsorship, affiliation, or endorsement of the website. It is inconceivable that Respondent registered and used the disputed domain name without actual and/or constructive knowledge of the EHARMONY mark and Complainant’s rights therein, evincing bad faith under a non-exclusivity analysis of Policy ¶ 4(a)(iii).
B. Respondent
Although Respondent did not submit a formal response, as noted above it did submit four E-Mails, in all of which it consented to transfer the disputed domain name, for example stating: “Let me know what the next step is so that we can take it and arrange for this domain to be taken from our domain list and handed over to the owners of eharmony.”
The panel will not make any findings of fact, for the reasons explained below.
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.
In this 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.
The same conclusion was reached by the Panel in Boehringer Ingelheim International GmbH v. Modern Limited - Cayman Web Development, FA0211000133625 (National Arbitration Forum, January 9, 2003) and in Alstyle Apparel/Active Wear v. John Schwab d/b/a Alstyle de Mexico, FA0307000170616 (National Arbitration Forum, September 5, 2003).
For the reasons given above, the Panel will not discuss this element of the Policy.
For the reasons given above, the Panel will not discuss this element of the Policy.
For the reasons given above, the Panel will not discuss this element of the Policy.
Given the common request of the Parties, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <eharmony.social> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: March 7, 2016
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