national arbitration forum




CapsCanada Corporation v. Gabriel Eilemberg

Claim Number: FA0710001103424



Complainant is CapsCanada Corporation (“Complainant”), represented by Xavier Morales, of Law Office of Xavier Morales, PO Box 2987, New York, NY 10008.  Respondent is Gabriel Eilemberg (“Respondent”), 1893 SW 3rd Street, Pompano Beach, FL 33069.



The domain name at issue is <>, registered with Corp.



The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.


Honorable Karl V. Fink (Ret.), as Panelist.



Complainant submitted a Complaint to the National Arbitration Forum electronically on October 25, 2007; the National Arbitration Forum received a hard copy of the Complaint on October 26, 2007.


On December 19, 2007, Corp. informed the National Arbitration Forum by e-mail that Respondent’s registration of the <> domain name had expired or been deleted by the registrant during the course of this dispute.  Complainant has renewed or restored the domain name under the same commercial terms as Respondent.  Accordingly, the <> domain name has been placed in registrar hold and registrar lock status, the WHOIS contact information for Respondent has been removed, and the WHOIS entry indicates that the domain name is subject to dispute pursuant to EDDP ¶ Corp. has verified that Respondent is bound by the Corp. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").


On January 3, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 23, 2008 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to by e-mail.


Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.


On January 25, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Karl V. Fink (Ret.), as Panelist.


Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent."  Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.



Complainant requests that the domain name be transferred from Respondent to Complainant.



A.  Complainant makes the following assertions:


1.      Respondent’s <> domain name is identical to Complainant’s CAPSCANADA mark.


2.      Respondent does not have any rights or legitimate interests in the <> domain name.


3.      Respondent registered and used the <> domain name in bad faith.


B.  Respondent failed to submit a Response in this proceeding.




Preliminary Issue: Consent to Transfer the Disputed Domain name


Complainant has submitted a document which Respondent has signed stating that “The parties have agreed to a transfer of the domain name  Accordingly the National Arbitration Forum is requested to effect a transfer of the disputed domain name from Respondent to Complainant.”  Therefore, the Panel finds that Respondent has consented to judgment in favor of Complainant and authorized the immediate transfer of the disputed domain name.  The purpose of arbitration, to resolve the dispute, has already been served.  Thus, the Panel orders immediate transfer of the disputed domain name from Respondent to Complainant.  See Disney Enters., Inc. v. Morales, FA 475191 (Nat. Arb. Forum June 24, 2005) (“[U]nder such circumstances, where Respondent has agreed to comply with Complainant’s request, the Panel felt it to be expedient and judicial to forego the traditional UDRP analysis and order the transfer of the domain names.”); see also Boehringer Ingelheim Int’l GmbH v. Modern Ltd. – Cayman Web Dev., FA 133625 (Nat. Arb. Forum Jan. 9, 2003) (transferring the domain name registration where the respondent stipulated to the transfer).



For the aforementioned reasons, the Panel concludes that relief shall be GRANTED.


Accordingly, it is Ordered that the <> domain name be TRANSFERRED from Respondent to Complainant.



Honorable Karl V. Fink (Ret.), Panelist

Dated:  February 12, 2008



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