WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Volkswagen Group of America, Inc. v. DomainsByProxy.com, LLC / Team Sewell and Robert Simmons, Sewell Family of Companies
Case No. D2017-0930
1. The Parties
Complainant is Volkswagen Group of America, Inc. of Herndon, Virginia, United States of America, represented by Phillips Ryther & Winchester, United States of America.
Respondents are DomainsByProxy.com, LLC of Scottsdale, Arizona, United States of America / Team Sewell and Robert Simmons, Sewell Family of Companies both of Odessa, Texas, United States of America, internally represented.
2. The Domain Names and Registrar
The disputed domain names <audiamarillo.com>, <audimidland.com>, <audiodessa.com> and <audiwesttexas.com> are registered with GoDaddy.com, LLC (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on May 9, 2017. On the same date, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On May 10, 2017, the Registrar transmitted by email to the Center its verification response confirming that Respondent Robert Simmons, Sewell Family of Companies is listed as the registrant of the disputed domain names <audiamarillo.com>, <audiodessa.com> and <audiwesttexas.com> and providing the contact details. The Registrar disclosed registrant and contact information for the disputed domain name <audimidland.com> which differed from the named Respondent DomainsByProxy.com, LLC and contact information in the Complaint. The Center sent an email communication to Complainant on May 12, 2017 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. On May 16, 2017, Complainant filed an amended Complaint including the correct registrant identity Team Sewell for the domain name <audimidland.com>.
The Center verified that the Complaint together with 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 and 4, the Center formally notified Respondents of the Complaint, and the proceedings commenced on May 18, 2017. In accordance with the Rules, paragraph 5, the due date for Response was June 7, 2017. On June 7, 2017, Respondent Sewell Family of Companies by email from its internal legal counsel requested an additional four calendar days for the submission of its Response pursuant to paragraph 5(b) of the Rules and a thirty calendar day extension pursuant to paragraph 5(e) of the Rules. The Center automatically granted Respondents' request based on paragraph 5(b) of the Rules and the due date for Response was extended until June 11, 2017. As there was no showing of exceptional circumstances, the Center declined the request for a longer extension under paragraph 5(e) of the Rules. The Response was filed with the Center on June 11, 2017.1
The Center appointed Jeffrey D. Steinhardt as sole panelist in this matter on June 21, 2017. 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 Panel issued the Administrative Panel Procedural Order No.1 (the "Procedural Order") on June 30, 2017, requesting Respondents to clarify the Response. Respondents replied on July 3, 2017.
4. Factual Background
The disputed domain names were registered on the following dates: <audiwesttexas.com> June 29, 2016; <audimidland.com>, <audiodessa.com>, and <audiamarillo.com> July 6, 2015. All of the disputed domain names presently route to parking pages without significant content.
Complainant owns many trademarks worldwide for its AUDI family of marks.
5. Parties' Contentions
Summarizing its legal contentions, Complainant alleges that (1) the disputed domain names are confusingly similar to Complainant's trademarks, (2) Respondents have no rights or legitimate interests in the disputed domain names, and (3) the disputed domain names were registered and are being used in bad faith, all in violation of the Policy. On the above grounds, Complainant requests transfer of the disputed domain names.
In light of the final disposition of this proceeding, it is unnecessary to recount Complainant's many factual allegations.
Respondents also make a number of contentious factual allegations in the Response. However, Respondents also consent to transfer of the disputed domain names to Complainant.
As noted above, the disposition below renders unnecessary further consideration of Respondents' factual allegations.
6. Discussion and Findings
A. Substantive Rules of Decision
The Rules require the Panel to decide the Complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable. Rules, paragraph 15(a).
Rule 10(a) gives panels the discretion to conduct proceedings in such manner as they deem appropriate under the Policy and the Rules. Under Rule 10(c), the Panel must "ensure that the proceeding takes place with due expedition."
B. Respondents' Consent to Transfer
In the Response, following many other allegations, Respondents' counsel declares: "The Respondent consents to the remedy requested by the Complainant and agrees to transfer the disputed domain name(s) to the Complainant." The Panel finds that this written statement within the formal Response, together with its clarification in reply to the Procedural Order, constitutes Respondents' consent to transfer of the disputed domain names.
C. Ordering Transfer without Consideration of all Elements under the Rules, Paragraph 4(a)
The Panel concludes that Respondent's consent provides a basis for an immediate order for transfer.
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 order transfer, and it is unnecessary for the Panel to determine whether Complainant has established its entitlement to transfer under paragraph 4(a) of the Rules. E.g., The Cartoon Network LP, LLLP v. Mike Morgan, WIPO Case No. D2005-1132 (where complainant sought transfer of the disputed domain name, and respondent consented to transfer, paragraph 10 of the Rules permit a panel to proceed immediately to make order for transfer without determination of elements of paragraph 4(a)), citing Williams-Sonoma, Inc. v. EZ-Port, WIPO Case No. D2000-0207).
A respondent's consent to transfer does not always merit an immediate transfer order without a detailed determination under the elements of Paragraph 4(a). The WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition, paragraph 4.10 identifies circumstances under which panels have considered that a full determination of the complainant's entitlement to transfer nonetheless was called for.
The Panel finds no such circumstances are present in this proceeding.
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 names, <audiamarillo.com>, <audimidland.com>, <audiodessa.com>, and <audiwesttexas.com> be transferred to Complainant.
Jeffrey D. Steinhardt
Date: July 6, 2017
1 Although the registrant of <audimidland.com> is listed as "Team Sewell", the administrative and registrant's street address and postal details are the same as for the other disputed domain names. Respondents' legal counsel, apparently an officer of Respondent Sewell Family of Companies, appears to have dealt with the <audimidland.com> domain name along with the other three disputed domain names, and lists all four in the signed Response. Consequently, the Panel accepts that the Response filed by counsel was deliberately filed on behalf of both the Sewell Family of Companies and the Team Sewell Respondents.
References to "Respondent" or "Respondents" in this Decision signify the identified registrants of the disputed domain names, without intention to refer to the DomainsByProxy.com, LLC.