Gennifer Choldenko v.
Claim Number: FA0804001178654
PARTIES
Complainant is Gennifer Choldenko (“Complainant”), represented by Aimee
M Bissonette, of Little Buffalo Law & Consulting,
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <gennifercholdenko.com> and <alcaponedoesmyshirts.com>,
registered with Compana, LLC.
PANEL
The undersigned certifies that he or she has acted independently and
impartially and to the best of his or her knowledge has no known conflict in
serving as Panelist in this proceeding.
Darryl C. Wilson, as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
electronically on April 16, 2008; the
National Arbitration Forum received a hard copy of the Complaint on April 18, 2008.
On April 17, 2008, Compana, LLC confirmed by e-mail to the
National Arbitration Forum that the <gennifercholdenko.com> and <alcaponedoesmyshirts.com>
domain names are registered with Compana, LLC
and that the Respondent is the current registrant of the names. Compana, LLC
has verified that Respondent is bound by the Compana,
LLC 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 April 22, 2008, a Notification
of Complaint and Commencement of Administrative Proceeding (the “Commencement
Notification”), setting a deadline of May 12, 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 postmaster@gennifercholdenko.com and postmaster@alcaponedoesmyshirts.com by e-mail.
A timely Response was received and determined to be complete on May 13, 2008.
On May 22, 2008, pursuant to Complainant’s
request to have the dispute decided by a single-member Panel, the National
Arbitration Forum appointed Darryl C. Wilson as Panelist.
RELIEF SOUGHT
Complainant requests that the domain names be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
Complainant contends that Respondent has registered domain names that
are identical or confusingly similar to Complainant’s common law trademarks and
service marks. Complainant further
contends that Respondent has no rights or legitimate interests to the disputed
domains and that Respondent should be considered as having registered and used
the subject domains in bad faith.
B. Respondent
Respondent does not contest any of Complainant’s allegations regarding
the domain names in dispute. Respondent instead
consents to judgment in favor of Complainant and agrees to the immediate
transfer of the domain names in dispute. Respondent states that its agreement to the
relief requested is “not an admission to the three elements of 4 (a) of the
policy” but is simply a “unilateral consent to transfer.”
FINDINGS
Complainant’s name is Gennifer Chlodenko. Complainant has been known by that name since the
date of her marriage in 1988. Complainant
is not aware of any other individual known by that name. Complainant is a well known author of
children’s books, having published six books to date, winning numerous awards,
and being translated into eleven languages. Her book “Al Capone Does My Shirts” was
published in 2004 and was on the New York
Times, Booksense, and Publishers Weekly bestseller lists. The
book was published using the mark GENNIFER CHOLDENKO in conjunction with the
publication just as she has done with all of her books. In 2005 Respondent registered the domain names
<genniferchlodenko.com> and <alcaponedeosmyshirts.com>
without Complainant’s knowledge or authorization.
Since Respondent has consented to the transfer of the disputed domain names the Panel opts to forego the traditional UDRP analysis and instead order the immediate transfer of the domain names in dispute. See 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);
see also Malev
Hungarian Airlines, Ltd. v. Vertical Axis Inc., FA 212653 (Nat Arb. Forum
Jan. 13, 2004) (“In this case, the parties have both asked for the domain name
to be transferred to the Complainant . . . Since the requests of the
parties in this case are identical, the Panel has no scope to do anything other
than to recognize the common request, and it has no mandate to make findings of
fact or of compliance (or not) with the Policy.”); see also 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.”).
DISCUSSION
Paragraph 15(a) of the Rules for Uniform Domain
Name Dispute Resolution Policy (the “Rules”) instructs this Panel to “decide a
complaint on the basis of the statements and documents submitted in accordance
with the Policy, these Rules and any rules and principles of law that it deems
applicable.”
Paragraph 4(a) of the Policy requires that the Complainant must prove
each of the following three elements to obtain an order that a domain name
should be cancelled or transferred:
(1) the domain name registered by the Respondent
is identical or confusingly similar to a trademark or service mark in which the
Complainant has rights;
(2) the Respondent has no rights or legitimate
interests in respect of the domain name; and
(3) the domain name has been registered and is
being used in bad faith.
See FINDINGS above.
See FINDINGS above.
See
FINDINGS above.
DECISION
Based on the request of the Complainant for relief and the Respondent’s
consent thereto, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <gennifercholdenko.com> and <alcaponedoesmyshirts.com> domain names be TRANSFERRED from
Respondent to Complainant.
Darryl C. Wilson, Panelist
Dated: June 5, 2008
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