Amanda De Wolf (formerly Moon) and the Estate
of Keith Moon v. Dennis Schimka
Claim Number: FA0608000780199
PARTIES
Complainant is Amanda De Wolf (formerly Moon) and the Estate of Keith Moon (“Complainant”), represented by Stephen J. Strauss, of Fulwider Patton LLP, 6060 Center Drive, Tenth Floor, Los Angeles, CA 90045. Respondent is Dennis Schimka (“Respondent”), 1440 Everview Rd., San Diego, CA 92110.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <keithmoon.com> and <keithmoon.net>, registered with Register.com, Inc.
PANEL
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.
R. Glen Ayers, Jr. served as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the
National Arbitration Forum electronically on August 17, 2006; the National
Arbitration Forum received a hard copy of the Complaint on August 18, 2006.
On August 17, 2006, Register.com, Inc.
confirmed by e-mail to the National Arbitration Forum that the <keithmoon.com> and <keithmoon.net> domain names are registered with Register.com,
Inc. and that the Respondent is the current registrant of the names. Register.com, Inc. has verified that
Respondent is bound by the Register.com, Inc. registration agreement and has
thereby 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 29, 2006, a Notification of
Complaint and Commencement of Administrative Proceeding (the “Commencement
Notification”), setting a deadline of September 18, 2006 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@keithmoon.com and postmaster@keithmoon.net by e-mail.
A hard copy of the Response was received on September
19, 2006. However, the National
Arbitration Forum did not receive an electronic copy of the Response. Thus, the National Arbitration Forum does
not consider this Response to be in compliance with ICANN Rule #5 (a).
On September 22, 2006,
pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed R. Glen Ayers, Jr. as
Panelist.
RELIEF SOUGHT
Complainant requests that the domain names be transferred from Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
Complainant asserts and provides evidence of her ownership (or the Estate’s ownership) of a trademark for her father’s name of Keith Moon. Mr. Moon was the drummer for The Who until his untimely death. Complainant alleges that Respondent has no rights in the name and has made no use of the name since registration of Keith Moon’s name as a domain name.
Complainant asserts bad faith, particularly
since Respondent seems to have made no use of the domain name since
registration and appears to merely be “squatting” on the name.
B. Respondent
Respondent has, without admitting liability, filed a response in which he simply states that he consents to the transfer of the domain name to Complainant and/or the estate.
FINDINGS
While Complainant has established a prima facie case of bad faith, Respondent has consented to the transfer of the domain name.
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 that the 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 the Respondent is identical or confusingly similar to a trademark
or service mark in which the Complainant has rights;
(2)
the 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.
Obviously the trademark and Mr. Moon’s name are identical to the domain names.
Again, as to rights in the name, that allegation is clearly set out.
As to bad faith, while Complainant has established a prima facie case of bad faith, Respondent has never used the domain name.
Respondent has stipulated that neither bad faith nor either of the other two elements needs to be proved, because he consents to the transfer of the domain name.
DECISION
Having established all three elements
required under the ICANN Policy, and having considered Respondent’s Response,
the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <keithmoon.com>
and <keithmoon.net> domain names be TRANSFERRED from
Respondent to Complainant.
R. GLEN AYERS, JR.
Dated: October 4, 2006
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