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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Dryvit Systems, Inc. v. Texas International Property Associates

Case No. D2008-0599

1. The Parties

Complainant is Dryvit Systems, Inc., West Warwick, Rhode Island, United States of America, represented by Edwards Angell Palmer & Dodge, LLP, United States of America.

Respondent is Texas International Property Associates, Dallas, Texas, United States of America, represented by Law Office of Gary Wayne Tucker, United States of America.

2. The Domain Name and Registrar

The disputed domain name <wwwdryvit.com> is registered with Compana LLC.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 16, 2008. On April 17, 2008, the Center transmitted by email to Compana LLC a request for registrar verification in connection with the domain name at issue. On April 17, 2008, Compana LLC 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”), 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 April 23, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was May 13, 2008. The Response was filed with the Center on May 14, 2008.

On May 19, 2008, Complainant requested a suspension of the proceedings to permit settlement discussions. On May 21, 2008, the Center notified the parties that the proceeding was suspended until May 30, 2008. On May 29, 2008, Complainant requested that the proceeding be re-instituted.

The Center appointed Sandra A. Sellers as the sole panelist in this matter on June 3, 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

Complainant is owner of the registered trademark DRYVIT for adhesives, plaster paints, ready-made construction elements, and fiber-glass fabrics. Complainant and its predecessor have used the mark continuously in US commerce since at least as early as 1969. Complainant operates the site “www.dryvit.com”.

Respondent’s domain name <wwwdryvit.com> reverts to a site for ads on stucco and Dryvit construction, with links including Complainant’s DRYVIT mark, and which lead to Complainant’s competitors in the construction industry. The domain name was registered in 2005.

5. Parties’ Contentions

A. Complainant

Complainant argues that the accused domain name is identical or confusingly similar to Complainant’s incontestable registered trademark; that Respondent has no legitimate rights in the mark; and that Respondent registered and is using the domain name in bad faith.

B. Respondent

Respondent does not contest the allegations, for the reasons stated below.

6. Discussion and Findings

In its Response to the Complaint, Respondent agreed to transfer the disputed domain name to the Complainant, upon order of the Panel. Respondent does not admit to the elements of paragraph 4(a) of the Policy, but rather makes an offer of “unilateral consent to transfer.”

Prior panels have determined in appropriate cases to grant the requested transfer without discussion and findings under paragraph 4(a) of the Policy. See, e.g., Williams-Sonoma, Inc. v. EZ-Port, WIPO Case No. D2000-0207. As in Williams-Sonoma, this Panel looks to the Rules, particularly paragraph 10 of the Rules, General Powers of the Panel, for guidance as to how to proceed in this situation. Under paragraph 10(a) of the Rules, the Panel may conduct the proceeding in such a manner as it considers appropriate. Under paragraph 10(c) of the Rules, the Panel shall endure that the proceeding takes place with due expedition. Given Respondent’s consent to transfer, this Panel deems it appropriate to grant the request to transfer under paragraph 10 of the Rules. No further consideration or discussion of the elements of paragraph 4(a) of the Policy is deemed necessary.

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, <wwwdryvit.com> be transferred to Complainant.

Sandra A. Sellers
Sole Panelist

Dated: June 17, 2008