The Complainant is The Gillette Company of Boston, Massachusetts, United States of America ("United States"), represented by The Procter & Gamble Company, United States.
The Respondent is Onika Interactive of Goregaon (w), Mumbai, India. 2. The Domain Name and Registrar
The disputed domain name is registered with Melbourne IT Ltd (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on May 27, 2014. On May 28, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On May 29, 2014, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on June 6, 2014.
The Center verified that the Complaint together with the amendment to the 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 June 12, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was July 2, 2014. The Response was filed with the Center on June 25, 2014.
The Center appointed Steven A. Maier as the sole panelist in this matter on June 30, 2014. 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 a company registered in Delaware, United States, with its principal place of business in Boston, Massachusetts, United States. It is a subsidiary of the Procter & Gamble Company. It is a supplier of batteries and battery-related products under the name and trademark DURACELL.
The Complainant is the owner of various registrations for the trademark DURACELL including the following:
- United States trademark number 793273 for DURACELL, filed on July 17, 1964 for batteries in Class 09
- Indian trademark number 231973 for DURACELL, filed on October 27, 1965 for electric apparatus in Class 09
The disputed domain name was registered on February 22, 2006.
At the date of the Center's formal compliance review, June 25, 2014, the disputed domain name did not resolve to any active website. 5. Parties' Contentions
For the reasons which will appear below, the Panel will summarize the parties' contentions in this case only in the briefest of terms. A. Complainant
The Complainant asserts for the purposes of paragraph 4(a) of the Policy:
(i) that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(ii) that the Respondent has no rights or legitimate interests in respect of the domain name; and
(iii) that the disputed domain name has been registered and is being used in bad faith.
The Complainant requests a transfer of the disputed domain name. B. Respondent
The Respondent states that its associated company, Three Sixty Degree Mobile Solutions Private Limited, was appointed by the Complainant to undertake a mobile game project in 2006 and that it registered the disputed domain name in that connection. It produces a certificate from Gillette Management, LLC dated April 24, 2006, which expressly references the disputed domain name and states that the Three Sixty company has successfully undertaken three projects for it.
It is the Respondent's case that it maintained the disputed domain name and an associated website until 2013 and wishes to be reimbursed by the Complainant for the costs it incurred in that regard. The Respondent does not respond specifically to the Complainant's submissions under paragraph 4(a) of the Policy but states: "The above matter being a dispute as regard to non payments and not to domain related issue as we had been officially appointed by Gillette for creating, hosting and maintaining the website cum wapsite."
The Response, as signed and filed by the Respondent, includes the following paragraph:
"IV. Consent to Remedy (Optional)
[6.] Onika Interactive consents to the remedy requested by the Complainant and agrees to [transfer/cancel] the disputed domain name(s) on the basis of Party agreement, without need for a decision being rendered by the Administrative Panel.]" 6. Discussion and Findings
In this case, the Complainant seeks a transfer of the disputed domain name and, according to the Response, the Respondent consents to such a transfer without the need for a decision being rendered by the Administrative Panel.
Under paragraph 10(a) of the Rules: "The Panel shall conduct the administrative proceeding in such manner as it considers appropriate in accordance with the Policy and these Rules." Under paragraph 10(c) of the Rules: "The Panel shall ensure that the administrative proceeding takes place with due expedition." According to paragraph 4.13 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0"): "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."
In this case, the Panel has considered whether the Respondent has indeed given its unambiguous consent to the remedy sought by the Complainant. In particular, the Panel has confirmed with the Center that the "Consent to Remedy" paragraph which appears in the Response was affirmatively included by the Respondent and was not merely pre-entered text that the Respondent failed to delete. In addition, the Panel has had regard to correspondence between the parties dated between April and June 2014 which has been submitted by the Complainant. The correspondence relates to the Respondent's claims to be reimbursed by the Complainant and is initially unclear as to whether the Respondent intends to retain the disputed domain name against its claim. However, in an email dated June 7, 2014 the Respondent states: "Kindly let us know the way forward and as mentioned earlier if P & G is unable to pay us our maintenance costs still we are not going hold back your domain." In a later email of the same date, the Respondent states: "We are clear in our intent to transfer whether you pay or you do not pay."
In the light of the Respondent's above statements contained in both the Response and the correspondence, the Panel concludes that the Respondent has given its unambiguous consent to a transfer of the disputed domain name.
While it is not possible at this stage at the administrative proceeding to effect a transfer by consent without a Panel Decision, there is ample precedent for the Panel to make a Decision in favour of transfer without coming to reasoned conclusions concerning the merits of the case.
The Panel has considered whether it would be proper in this case to proceed to a Decision of this nature without the express agreement of the Complainant. While the Complainant seeks a transfer of the disputed domain name, it has paid for a Decision and in some previous cases complainants have declined to agree to a transfer by consent because they wished to obtain a reasoned finding, particularly on the issue of bad faith. However, having considered all the circumstances of this case, the Panel is not of the view that there would be any reasonable basis for the Complainant to object to a transfer by consent and does not consider in this case that it is necessary to obtain the Complainant's agreement to that course.
In the circumstances, the Panel expresses no conclusions concerning the substantive merits of the case, but finds that the appropriate course is to order a transfer of the disputed domain name to the Complainant based on the Respondent's unambiguous consent on the record to that remedy. 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.
Steven A. Maier
Sole Panelist
Date: July 4, 2014
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