The Complainant is Adam Leitman Bailey of New York, New York, United States of America, represented by Adam Leitman Bailey, P.C., United States of America.
The Respondent is Whois Privacy Protection Service by of Shibuya-ku, Tokyo, Japan / Kazuhito Imai of Chuo-ku Sapporo-shi, Hokkaido, Japan. 2. The Domain Name and Registrar
The disputed domain name is registered with GMO Internet, Inc. d/b/a Discount-D and O (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 14, 2013. On June 17, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 18, 2013, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on June 24, 2013 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on June 27, 2013. On June 24, 2013, the Center transmitted an email to the parties in both Japanese and English language regarding the language of the proceeding. On June 27, 2013, the Complainant confirmed its request that English be the language of the proceeding. The Respondent replied in an email in Japanese that he had bought the disputed domain name because it was free and had no intention of infringing any rights. He asked what he should do and requested an explanation in Japanese.
The Center verified that the Complaint and the amended Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), 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 the Respondent of the Complaint, and the proceedings commenced on July 10, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was July 30, 2013. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 31, 2013.
The Center appointed Douglas Clark as the sole panelist in this matter on August 7, 2013. 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
The Complainant is an individual Adam Leitman Bailey. The Complainant is a real estate lawyer based in New York. He is the name partner of the real estate law firm Adam Leitman Bailey P.C. The Complainant is also the registrant, inter alia, of the domain names and .
The disputed domain name was registered on March 26, 2013. Prior to the submission of the Complaint the disputed domain name resolved to a page in Japanese providing information on dieting. Links on the page appeared to lead Internet users to commercial sites. 5. Parties’ Contentions A. Complainant
The Complainant contends that the disputed domain name is identical or confusingly similar to his name Adam Leitman Bailey; that the Complainant has common law rights to his personal name because the Complainant’s personal name is used in commerce and is a distinctive identifier associated with the Complainant and the Complainant’s services; that the Respondent has no rights or legitimate interests in the disputed domain name as there is no relationship between the Complainant and the Respondent nor has the Complainant given any authorization to the Respondent to use the Complainant’s trademark; and that the disputed domain name has been registered and used in bad faith. B. Respondent
The Respondent did not reply to the Complainant’s contentions with regard to the registration and use of the disputed domain name.
The Respondent, Mr. Kazuhito Imai, responded to the Complaint in Japanese a number of times. In his initial communications he stated that he had taken the page down and that the disputed domain name would expire eventually.
In an email sent after the Panel was appointed, Mr. Imai stated that he was willing to transfer the disputed domain name and asked that the Registrar be contacted to effect this. 6. Discussion and Findings A. Language of Proceedings
The language of the Registration Agreement for the disputed domain name is Japanese. Paragraph 11(a) of the Rules provides that:
“Unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding.”
The Complaint was filed in English. In the Complaint the Complainant requested that English be the language of proceedings. The Respondent does not appear to understand English. The website the disputed domain name resolved to was entirely in Japanese. However, it is clear the Respondent understands the nature of the proceedings. Furthermore, given the Respondent’s unequivocal consent to transfer, it would be unfair on the Complainant to order the Complaint be translated.
On this basis, the Panel determines that English be the language of the proceedings. The Panel has read the Respondent’s submissions in Japanese and does not require them to be translated. B. Consent to Transfer
Paragraph 4.13 of the WIPO Overview 2.0 sets out the current views of UDRP panels when a respondent consents to transfer or cancel the disputed domain name. This provides:
“Where the parties to a UDRP dispute have not succeeded in settling a case between themselves prior to the rendering of a panel decision, but the respondent has given its unilateral and unambiguous consent on the record to the remedy sought by the complainant, a panel may at its discretion order transfer (or cancellation) of the domain name on that basis alone. Some panels have done so on the basis of giving effect to party agreement as to outcome (sometimes, where the parties so request, on a no-fault basis), with a few also by deeming such consent to satisfy the requirement of the three elements of the UDRP (sometimes by virtue of deemed admission). Some panels have declined to grant a remedy solely on the basis of the respondent’s consent, but rather elected to proceed to a substantive determination of the merits; for example, because the panel needs to be certain that the complainant has shown that it possesses relevant trademark rights, or because there is ambiguity as to the genuineness of the respondent’s consent, or because the respondent has not expressly admitted bad faith, or because the panel finds there is a conduct or other aspect to the proceedings which warrants a full determination on the record, or because the panel finds that the complainant has not agreed to a consent decision and the complainant is entitled to the decision for which it has paid in filing its complaint, or because the panel finds a broader interest in reaching and recording a substantive determination (e.g. in connection with patterns of conduct under paragraph 4(b)(iii) of the UDRP).”
This Panel considered this issue in detail in Rockwool International A/S v. Lin Chengxiong,WIPO Case No. D2012-0472 and found that it prefers the view in the first sentence of paragraph 4.13 of the WIPO Overview 2.0 that unambiguous consent is sufficient for a panel to order transfer or cancellation. The Panel will not repeat its reasoning here.
In this case, the Complainant has established its relevant common law trademark rights and standing to bring the Complaint. The Respondent has given its unambiguous consent to transfer. Accordingly the Panel will order that the disputed domain name be transferred. 7. Decision
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name be transferred to the Complainant.
Douglas Clark
Sole Panelist
Date: August 24, 2013
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