Kennolyn Camp Corporation v. Texas International Property Associates - NA NA
Case No. D2008-1208
1. The Parties
Complainant is Kennolyn Camp Corporation, California, United States of America, represented by Hanson Bridgett LLP, United States of America.
Respondent is Texas International Property Associates - NA NA, Dallas, Texas United States of America, represented by the Law Office of Gary Wayne Tucker, United States of America.
2. The Domain Name and Registrar
The disputed domain name <kennolyncamp.com> (the “Domain Name”) is registered with Compana LLC.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 8, 2008. On August 8, 2008, the Center transmitted by email to Compana LLC a request for registrar verification in connection with the Domain Name. On August 11, 2008, Compana LLC 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 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 August 13, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was September 2, 2008. The Response was filed with the Center on September 2, 2008.
The Center appointed Thomas D. Halket as the sole panelist in this matter on September 16, 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
As further set forth below, because Respondent has consented to the transfer of the Domain Name to Complainant, the Panel may grant the relief requested by Complainant without the need to review in detail the elements of the Policy. As set forth below, the question the Panel must determine is whether the consent is genuine. In the circumstances here presented the only facts relevant to that determination are those relevant to whether “the domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights […]”, paragraph 4(a) of the Policy. In that regard, the following facts are alleged by Complainant and not disputed by Respondent.
Complainant was founded in 1946 and, since then, has continually used the marks KENNOLYN, KENNOLYN CAMP, and KENNOLYN CAMPS in connection with recreational camps, sports camps, day camps, and summer camps. Complainant is well-known in the camp industry and is accredited by the American Camp Association. It has over 2,000 campers registered this year alone, and has generated significant revenues over the years. During the last five years alone, Complainant has generated revenues in excess of USD 4,000,000 per year. Complainant is the owner of a U.S. federal service mark registration for the KENNOLYN mark. Registration No. 2,003,151. This registration was filed on October 11, 1995 and claims a first use date of April 1, 1946.
Complainant has used KENNOLYN CAMP and KENNOLYN CAMPS as both a trade name and a service mark in commerce since at least as early as 1946. Through this extensive use, the public has come to associate the KENNOLYN CAMP mark with Complainant, giving Complainant strong common-law trademark rights in the mark KENNOLYN CAMP.
5. Parties' Contentions
A. Complainant
Complainant alleges:
(a) The Domain Name is 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 Name; and
(c) The Domain Name was registered and is being used by Respondent in bad faith.
B. Respondent
While Respondent has not admitted to Complainant's contentions, neither has it disputed them, but has rather just made a “unilateral” consent to the transfer of the Domain Name.
6. Discussion and Findings
Respondent has explicitly not admitted to Complainant's contentions; but neither has it disputed them. Rather Respondent has made “an offer of ‘unilateral consent to transfer' [the Domain Name].” The Panel is thus charged with a two-step task, namely the determination of (i) the steps it should follow in this proceeding and (ii) the effect of Respondent's “consent.”
A number of other panels have been faced with the circumstances presented here. There is, however, some divergence on the appropriate way to proceed. This divergence is aptly summarized in The Cartoon Network LP, LLLP v. Mike Morgan,
WIPO Case No. D2005-1132, a decision partially quoted by Respondent. In that decision the Panel observed:
“The Response also states that the Respondent does not wish to contest the Complaint (‘I have no interest in disputing the complaint'), consents to their transfer (‘I am willing to hand over the names that are in my control') and also requests that ‘no judgment be made as have agreed to transfer names to complainant'.
“The Complainant has not accepted the Respondent's implicit offer of a settlement. Accordingly, there is no settlement agreement, and termination of the proceeding on the grounds of settlement pursuant to paragraph 17 of the Rules has no application.
“A number of Panel decisions have considered the proper course where a respondent has unilaterally consented to transfer a disputed domain name to a complainant. There have been at least three courses proposed: (i) to grant the relief requested by the Complainant on the basis of the Respondent's consent without reviewing the facts supporting the claim (see Williams-Sonoma, Inc. v. EZ-Port, WIPO Case No. D2000-0207; Slumberland France v. Chadia Acohuri,WIPO Case No. D2000-0195); (ii) to find that consent to transfer means that the three elements of paragraph 4(a) are deemed to be satisfied, and so transfer should be ordered on this basis (Qosina Corporation v. Qosmedix Group,WIPO Case No. D2003-0620; Desotec N.V. v. Jacobi Carbons AB,WIPO Case No. D2000-1398); and (iii) to proceed to consider whether on the evidence the three elements of paragraph 4(a) are satisfied because the Respondent's offer to transfer is not an admission of the Complainant's right (Koninklijke PhilipsElectronics N.V. v. Manageware,WIPO Case No. D2001-0796) or because there is some reason to doubt the genuineness of the Respondent's consent (Société Française du Radiotéléphone-SFR v. Karen,WIPO Case No. D2004-0386; Eurobet UK Limited v. Grand Slam Co,WIPO Case No. D2003-0745).
“There is a difference between a unilateral consent to transfer and an admission of the elements of paragraph 4(a) of the Policy. A respondent might consent to transfer in circumstances where bad faith would be strongly denied (for example, where a domain name was registered in error). Accordingly, this Panel does not accept that a unilateral consent to transfer ‘deems' proved the three elements of paragraph 4(a) of the Policy.
“However, this Panel considers that a genuine unilateral consent to transfer by the Respondent provides a basis for an immediate order for transfer without consideration of the paragraph 4(a) elements. Where the Complainant has sought transfer of a disputed domain name, and the Respondent consents to transfer, then pursuant to paragraph 10 of the Rules the Panel can proceed immediately to make an order for transfer. This is clearly the most expeditious course (see Williams-Sonoma, Inc. v. EZ-Port, WIPO Case No. D2000-0207).”
After consideration this Panel finds the choice of the Panel in Cartoon Network, supra to be the correct one. 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.
Turning now therefore to the question of whether the consent was made in good faith, the Panel finds there is no basis for concluding that it was not. Certainly Complainant has not claimed that it was, nor are any facts set forth in the Complaint or the Response to form a creditable basis for concluding lack of genuineness. It is true that the Complaint does set forth facts from which one could reasonably draw the conclusion that Respondent is a “serial cybersquatter.” Whether or not Respondent is a cyber squatter does not appear to this Panel to be determinative to the issue of whether Respondent's consent is genuine. It is true that a series of findings of cybersquatting is hardly flattering and could be probative as to character or motive. Nevertheless, there is no other real evidence on record that the consent is other than genuine. Thus, for example, there is no evidence that the proceedings are a sham and that the consent has been given to prevent the real owner of the mark from obtaining the Domain Name though it does raise the question as to why the Domain Name may have been registered at all.
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 name, <kennolyncamp.com> be transferred to Complainant.
Thomas D. Halket Sole Panelist
Date: September 30, 2008
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