DC Comics v. Ayush Rohila / Akira Eth
Claim Number: FA2202001984347
Complainant is DC Comics (“Complainant”), represented by Erin S. Hennessy, New York, USA. Respondent is Ayush Rohila / Akira Eth (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <batmanerc.com>, registered with Hosting Concepts B.V. D/B/A Registrar.Eu.
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.
Debrett G. Lyons as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 14, 2022; the Forum received payment on February 15, 2022.
On February 18, 2022, Hosting Concepts B.V. D/B/A Registrar.Eu confirmed by e-mail to the Forum that the <batmanerc.com> domain name is registered with Hosting Concepts B.V. D/B/A Registrar.Eu and that Respondent is the current registrant of the name. Hosting Concepts B.V. D/B/A Registrar.Eu has verified that Respondent is bound by the Hosting Concepts B.V. D/B/A Registrar.Eu 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 24, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 16, 2022 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@batmanerc.com. Also on February 24, 2022, 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 formal response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On March 21, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Debrett G. Lyons 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 a formal Response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant asserts trademark rights in BATMAN and submits that the disputed domain name is confusingly similar to its trademark.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name.
Complainant alleges that Respondent registered and used the disputed domain name in bad faith.
B. Respondent
No Response was filed but Respondent wrote, stating that “I did the site for a client and do not know anything about it if they want the domain I can just transfer it as its no use to me and the site is also down.”
The Panel makes the following factual findings:
1. Complainant is a well-known publisher of comic magazines featuring action heroes including the fictitious character, “Batman”;
2. Complainant is the owner of United States Patent and Trademark Office Reg. No. 856,045, registered September 3, 1968 for BATMAN;
3. there is no relationship between the parties; and
4. the domain name was registered on November 6, 2021 and is currently not in use but previously resolved to a webpage that made use of Complainant’s BATMAN mark and offered cryptocurrency in the form of an ERC20[i] meme coin called BATMAN.
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
A preliminary procedural issue arises since Respondent consents to transfer of the domain name. In these circumstances the Panel has discretion to forego application of paragraph 4(a) of the Policy and order an immediate transfer of the domain name (see, for example, Disney Enters., Inc. v. Morales, FA 475191 (Forum June 24, 2005)).
Those times when a panel has gone on to make a full analysis have been essentially limited to cases where the respondent’s actions showed manifest, ongoing bad faith and/or where the complainant did not agree to transfer by consent and, explicity or implicity, expected a full determination.
Neither is clearly the case here. Complainant drew Respondent’s consent correspondent to the attention of the Forum stating that “it seems the registrant is agreeing to transfer the domain” and asking for that offer to be taken into account by the Panel. Further, although Respondent’s initial use of the disputed domain is, on any analysis, unauthorised use of Complainant’s intellectual property, the evidence shows that before Respondent ceased use of the domain name and took down the described webpage, it added a statement there of its intention to rebrand due to complaint.
The Panel determines that there is no cause to apply paragraph 4(a) of the Policy and instead determines in accordance with Respondent’s intention that the disputed domain name be transferred directly to Complainant without further analysis.
Accordingly, it is Ordered that the <batmanerc.com> domain name be TRANSFERRED from Respondent to Complainant.
Debrett G. Lyons, Panelist
March 25, 2022
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