The Complainant is La Quinta Worldwide LLC of Nevada, United States of America (“United States”), represented by Lydecker, Lee, Behar, Berga & DeZayas, LLC, United States.
The Respondent is Privacy Ltd. Disclosed Agent for Yolapt of United Kingdom of Great Britain and Northern Ireland, represented by Renova, Ltd., Spain.
The disputed domain name <laquenta.com> is registered with Fabulous.com.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 21, 2009. On April 22, 2009, the Center transmitted by email to Fabulous.com a request for registrar verification in connection with the disputed domain name. On April 23, 2009, Fabulous.com transmitted by email to the Center its verification response confirming that the 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” 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 April 29, 2009. In accordance with the Rules, paragraph 5(a), the due date as extended for Response was May 27, 2009. The Response was filed with the Center on May 27, 2009.
The Center appointed Nicholas Weston as the sole panelist in this matter on June 16, 2009. 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.
The language of this administrative proceeding is English, being the language of the registration agreement.
In response to certain procedural requests from the Parties, this Panel issued a Panel Order on June 25, 2009. The effect of the Panel Order was to deny the Parties' request for a Stay, to rule inadmissible and disregard the Complainant's unsolicited submission of a Reply, and to extend to July 2, 2009, the date by which this Panel was required to forward a Decision in this case. This Panel also granted the Parties, for reasons of procedural fairness, until Monday, June 29, 2009 to consider their position in light of the Panel Order denying their “Joint Request to Stay the Administrative Proceeding”.
On June 26, 2009, the Respondent submitted via email to the Center, and to the Complainant, a “Joint Request to Terminate the Administrative Proceeding.” The details of this document are set out at paragraph 5.C below.
The Complainant operates a business with around 65,000 hotel rooms under the brand LA QUINTA. Its North American operations include 700 hotels in 42 States of the United States and in Canada and Mexico. The Complainant is the owner of a number of trademarks consisting of, or including the word “la quinta”, in respect of hotel and motel services, several registrations that cover the United States the first of which dates from August 26, 1969 and numerous others in over 50 countries. The Complainant owns numerous domain names incorporating this trademark including the domain name <laquinta.com> registered in 1995 and operates a website relating to its hotels at that domain name.
The Respondent registered the domain name <laquenta.com> (the “Disputed Domain Name”) on August 8, 2003.
Until recently, the Respondent used the Disputed Domain Name for click-through or pay-per-click (“PPC”) landing pages. PPC advertisements display a link when a keyword query with a search engine matches an advertiser's keyword list. PPC advertising is a search engine marketing technique for directing traffic to a landing page containing sponsored links or sponsored advertisements. In this case, when the Disputed Domain Name <laquenta.com> was typed in the period prior to the Complainant contacting the Respondent on February 11, 2009, it redirected traffic to a PPC landing page for hotels, including the Complainants' own websites at “www.laquinta.com” and “www.lq.com” amongst others.
According to paragraph 10(b) of the Rules, the Panel is obliged to give each Party a fair opportunity to present its case. Consistently with paragraph 12 of the Rules, by Panel Order issued on June 25, 2009 this Panel granted the Parties until Monday, June 29, 2009 to consider their position in light of the Panel Order denying their “Joint Request to Stay the Administrative Proceeding” and to make any submissions in relation thereto. The document entitled “Joint Request to Terminate the Administrative Proceeding” was sent by e-mail from Respondent to the Center on June 26, 2009, within the period granted pursuant to the Panel Order. According 10(d) of the Rules, the Panel has the discretion to determine the admissibility of the evidence. According of paragraph 17(a) of the Rules specifically envisions the possibility of the Parties agreeing on a settlement. This Panel finds that the “Joint Request to Terminate the Administrative Proceeding” is admissible and will be received as evidence of a settlement.
Having regard to the positive orders sought in the “Joint Request to Terminate the Administrative Proceeding” in addition to a termination order, and having regard to paragraph 10(b) of the Rules, the Panel must be satisfied that any orders made will address the appropriate Respondent.
Paragraph 1 of the Rules defines “Respondent” as “the holder of a domain name registration against which a complaint is initiated”. The Complainant has named and proceeded against a domain name registration privacy service listed as the registrant of the Disputed Domain Name in the WhoIs prior to the filing of the Complaint.
The use of a privacy service raises three issues for determination by the Panel. First, the Panel must identify the appropriate Respondent. Second, the Panel must determine the applicable mutual jurisdiction. Third, the Panel must determine whether the Center has adequately discharged its responsibility to contact the Respondent by reasonable means.
Taking into account the above questions as also set out in Accor and SoLuxury HMC v. Domains by Proxy, Inc. and Therese Kerr, WIPO Case No. D2009-0243 this Panel finds that in light of the record the named Respondent Privacy Ltd Disclosed Agent for Yolapt is the proper respondent.
As noted having regard to the Complainant's submissions and the location of the principal office of the registrar, it appears that the applicable mutual jurisdiction1 is Australia.
Finally, the Panel has reviewed the record and finds that the Center has adequately discharged its responsibility to contact the Respondent by reasonable means. Prima facie evidence of this, apart from the Respondent's Reply, is the “Joint Request to Terminate the Administrative Proceeding.”
Paragraph 17(a) of the Rules states:
“(a) If, before the Panel's decision, the Parties agree on a settlement, the Panel shall terminate the administrative proceeding.”
On June 26, 2009, the Respondent submitted via email to the Center, and to the Complainant, a “Joint Request to Terminate the Administrative Proceeding.” It states: “It is hereby stipulated and agreed by and between the attorneys for the representative parties acting on the basis of the Complainant and the Respondent having reached a settlement agreement regarding the transfer of the domain name to Complainant (only), a copy of which is attached hereto as follows: 1 The Parties respectfully request that the Panel issue an order authorizing the Registrar to unlock the Domain Name for the sole purpose of transferring the Domain Name to Complainant. For the avoidance of any possible doubt, the parties request that the order not permit the transfer of the Domain Name to any party other than the Complainant 2. The Parties respectfully further request that the Panel issue an order terminating the above proceeding without prejudice pursuant to ICANN Rule 17(a).”
According to paragraph 17(a) of the Rules, the word “shall” makes it mandatory for the Panel to terminate the proceedings where “the parties agree on a settlement”, but the Rules are silent as to the timing of such termination. Numerous panels give effect to the intentions of the parties in these circumstances by requiring a transfer and make such further (or other) orders as deemed necessary prior to termination of the proceeding. (see, for example: Williams-Sonoma, Inc. v. EZ-Port, WIPO Case No. D2000-0207; Salvatore Ferragamo Italia S.p.A. v. Eric Schier, WIPO Case No. D2001-0025; United Advertising Publications, Inc. v. Net Marketing, WIPO Case No. D2000-0058; Torraspapel, S.A. v. Evidence Interactive, WIPO Case No. D2000-0081; Tennis Corporation of America, doing business as “Sportscare” v. Chamberlin Chiropractic Corporation, WIPO Case No. D2000-0331; and Paramount Pictures Corporation v. Texas International Property Associates, WIPO Case No. D2007-1753; Halcyon Yarn, Inc. v. Texas International Property Associates – NA NA, WIPO Case No. D2008-0174).
Until termination is effected, this Panel is seized of jurisdiction over this dispute pursuant to the Policy and the Rules, it is the only forum to be invoked by the Parties and it has specifically been requested to make certain orders to give effect to their intentions. The Panel gives the evidence of such request the maximum weight under paragraph 10(d) of the Rules. On the basis of the Parties' “Joint Request to Terminate the Administrative Proceeding” and its attendant e-mails and having regard to paragraph 15(a) of the Rules, this Panel is satisfied that the Parties have agreed to settle this dispute.
This Panel is also satisfied that consent by the Respondent to transfer the Disputed Domain Name to the Complainant provides a sufficient basis for an order for transfer and for concluding the proceeding without deciding at this time whether the requirements of paragraph 4(a) of the Rules are met. (see, for example: Williams-Sonoma, Inc. v. EZ-Port, WIPO Case No. D2000-0207; The Cartoon Network LP, LLLP v. Mike Morgan, WIPO Case No. D2005-1132; Infonxx. Inc v. Lou Kerner, WildSites.com , WIPO Case No. D2008-0434; SYTradingPost, Inc. v. OS Domain Holdings IV, LLC., WIPO Case No. D2008-0815.
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 <laquenta.com>, be transferred to the Complainant
Dated: June 30, 2009
1 In general having regard to the definition of “mutual jurisdiction” in the Rules, it would be that of the registrant as identified in the WhoIs at the time of the filing the complaint with the provider see Research In Motion Limited v. Privacy Locked LLC/Nat Collicot, WIPO Case No. D2009-0320.