WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Embarq Holdings Company LLC v. D Case No. D2008-1368 1. The Parties
Complainant is Embarq Holdings Company LLC, of Overland Park, Kansas, United States of America, represented by The Gigalaw Firm, Douglas M. Isenberg, Attorney at Law, LLC, of United States of America.
Respondent is D, of Raymore, Missouri, United States of America. 2. The Domain Names and Registrar
The disputed domain names , , , , and (the “Domain Names”) are registered with GoD, Inc. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 8, 2008. On September 9, 2008, the Center transmitted by email to GoD, Inc. a request for registrar verification in connection with the Domain Names. On September 9, 2008, GoD, Inc. transmitted by email to the Center its verification response, confirming that Respondent is listed as the registrant and providing the contact details. The Center verified that the Complaint to the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified Respondent of the Complaint, and the proceedings commenced on September 17, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was October 7, 2008. Respondent sent an informal communication to the Center on September 17, 2008, which was acknowledged as its Response by the Center on September 18, 2008.
The Center appointed Thomas D. Halket as the sole panelist in this matter on October 21, 2008. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7. 4. Factual Background
Complainant is a holding company for Embarq Corporation, a publicly traded company (NASDAQ symbol: EQ) that offers a suite of communications services. Complainant is included in the S&P 500 and is in the Fortune 500 list of America's largest corporations. Complainant has approximately 18,000 employees and operates in 18 states. For full-year 2007, Complainant reported total revenues of US$6.37 billion and operating income of US$1.50 billion.
Complainant offers to consumers services that include local and long distance home phone service, high-speed Internet, wireless, and satellite TV from DISH Network. For businesses, Complainant has a range of services including local voice and data services, long distance, Business Class High Speed Internet, wireless, satellite TV from DIRECTV, enhanced data network services, voice and data communication equipment and managed network services.
Complainant owns at least 15 trademark registrations and pending trademark applications in the United States for trademarks that consist of or contain the mark EMBARQ (the “EMBARQ Trademark”). These include:
Mark Reg. No. Date of First Use Date of Registration
EMBARQ
3,403,273
May 17, 2006
March 25, 2008
EMBARQ
3,413,064
May 17, 2006
April 15, 2008
EMBARQ
3,211,948
December 2005
February 20, 2007
EMBARQ
3,399,800
May 17, 2006
March 18, 2008
EMBARQ
3,262,958
May 17, 2006
July 10, 2007
Complainant is the registrant of approximately 864 domain names that consist of or contain the EMBARQ Trademark or variations thereof. Complainant operates its primary website at “”, using the domain name , which was registered on June 18, 1999.
Complainant has never assigned, granted, licensed, sold, transferred or in any way authorized Respondent to register or use any of the EMBARQ Trademark in any manner. Respondent registered each of the Domain Names on February 6, 2007. Respondent appears to be using each of the Domain Names in connection with a website that falsely appears to be a website affiliated with Complainant but in actuality offers services in competition with Complainant. 5. Parties' Contentions A. Complainant Complainant alleges
(a) the Domain Names are identical and confusingly similar to a trademark or service mark in which Complainant has rights;
(b) Respondent has no rights or legitimate interests in respect of the Domain Names; and
(c) the Domain Names were registered and are being used by Respondent in bad faith. B. Respondent
Respondent has not admitted nor disputed Complainant's contentions; rather it has in essence made a “unilateral” consent to the transfer of the Domain Names. 6. Discussion and Findings
Respondent has in essence made a unilateral offer to transfer the Domain Names to Complainant. A number of other Panels have been faced with the circumstances presented here, including this Panel in a previous matter, Kennolyn Camp Corporation v. Texas International Property Associates - NA NA,WIPO Case No. D2008-1208. There it was held:
“Unless there is some credible basis for concluding that the consent to transfer was made in bad faith or was otherwise other than genuine, there is no reason or justification for the Panel to determine the paragraph 4(a) elements. Indeed, there may be real justification for not making such determination. Any resolution of the matter that is agreeable to both parties is generally to be preferred over one that is not. Accordingly, the Panel finds that under the circumstances presented here, the Panel is charged only with deciding whether the consent was made in good faith and that, if it was, ‘so ordering' it.”
Thus, the only question which this Panel must decide is whether the consent was made in good faith. After a review of the record, such as it is, the Panel finds there is no basis for concluding that it was not. There is no real evidence that the consent is other than genuine. For example, there is no evidence that Respondent's actions are a sham and that the consent has been given to prevent the real owner of the mark from obtaining the Domain Names. 7. Decision
For all the foregoing reasons, in accordance with Paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain names , , , , and be transferred to Complainant.
Thomas D. Halket
Sole Panelist
Dated: November 4, 2008
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