Troy Doucette / Troy’s Marine Brokers v. Dane Devine / Novi Boat Brokers
Claim Number: FA1609001693672
Complainant is Troy Doucette / Troy’s Marine Brokers (“Complainant”), represented by Lynette M. Muise of Muise Law Inc., Canada. Respondent is Dane Devine / Novi Boat Brokers (“Respondent”), Afghanistan.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <troysmarinebrokers.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.
M. KELLY TILLERY, ESQUIRE as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 14, 2016; the Forum received payment on September 14, 2016.
On September 14, 2016, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <troysmarinebrokers.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 September 15, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 5, 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@troysmarinebrokers.com. Also on September 15, 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.
A timely Response was received and determined to be complete on October 4, 2016.
On October 5, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed M. Kelly Tillery, Esquire 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant contends that:
1. Respondent has deliberately registered a plural version of the Complainant’s name which is confusingly similar and set up to take away business by a direct competitor and former business partner;
2. the domain name was registered by the Respondent 84 days after Complainant registered <troysmarinebroker.com>;
3. Respondent’s website content has been set up to both confuse and take away clientele of Complainant and redirect them to Respondent’s business website of <noviboatbrokers.com>;
4. contracted brokerage listings have been copied from <troysmarinebroker.com> and placed on the website of <noviboatbrokers.com> where Respondent’s domain name is forwarding, causing clientele to believe they are on the site of Complainant, when they are in fact accessing the site content of another brokerage firm;
5. Complainant has been doing business as Troy’s Marine Broker and using <troysmarinebroker.com> as the company domain name since November 4, 2013;
6. on January 27, 2014, Respondent, a direct business competitor and former business partner, registered the plural version of the domain name, <troysmarinebrokers.com>;
7. the addition of an “S” at the end of the domain name makes it confusingly similar to the registered business name and domain name for Troy’s Marine Broker and <troysmarinebroker.com>;
8. Respondent’s company is currently registered and doing business under Novi Boat Brokers, which is not in any way close to or related to Troy’s Marine Broker, his direct competitor;
9. the respondent has copied contracted brokerage listing data and images from <troysmarinebroker.com> and set it up on <troysmarinebrokers.com>, redirecting clientele to <noviboatbrokers.com> clearly showing that the domain name was both registered and being used in bad faith;
10. there have been at least 3 other non-domain name related trademark litigation cases of misuse of a business name in the Marine Brokerage Industry by Respondent.
B. Respondent
Respondent contends that:
1. It agrees to relinquish the domain name <troysmarinebrokers.com> on the condition that Complainant hereby irrevocably and forever discharges Respondent from any future claims or proceedings with respect to this domain name. Respondent requests that a release from future claims be provided in writing upon transfer of said domain name.
2. The Nova Scotia Registry of Joint Stocks as well as the annexes that were provided with the Complaint, list the corporation name of Complainant as “Troy’s Marine Broker” and not, “Troy’s Marine Brokers” as is listed throughout the complaint.
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.
Preliminary Issue: Consent to Transfer
Respondent does not contest any claim in the Complaint. Respondent consents to transfer the <troysmarinebrokers.com> domain name to Complainant on the condition that a release from future claims be provided in writing upon transfer of said domain name.
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. As a result, the Panel finds that in a circumstance such as this, where Respondent does not contest transfer but instead agrees to transfer, the Panel need not conduct the traditional UDRP analysis and may order an immediate transfer of the <troysmarinebrokers.com> domain name. See Boehringer Ingelheim Int’l GmbH v. Modern Ltd. – Cayman Web Dev., FA 133625 (Forum Jan. 9, 2003) (transferring domain name registration where the respondent stipulated to the transfer); see also Malev Hungarian Airlines, Ltd. v. Vertical Axis Inc., FA 212653 (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 (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.”).
The Panel is not empowered to grant any release, much less the one requested. While the Panel’s decision may have that effect under the law of some jurisdictions, that must be left to those forums at a later date.
The Panel could treat Respondent’s Response as a nullity as it imposes a condition on its consent that cannot be met by this Panel and has not been met by Complainant in any reply. Or the Panel could treat it as consent accompanied by an obviously meaningless condition. Or the Panel could find that the absence of any substantive response to the several well-plead and sufficient allegations of Complainant constitute admissions of all necessary elements of a UDRP claim.
The Panel finds that any of these three findings require a decision in favor of the Complainant and so finds all.
The Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <troysmarinebrokers.com> domain name be TRANSFERRED from Respondent to Complainant.
M. KELLY TILLERY, ESQUIRE, Panelist
Dated: October 13, 2016
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