Gennifer Choldenko v.
Claim Number: FA0804001178654
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.
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.
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 email@example.com and firstname.lastname@example.org 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.
Complainant requests that the domain names be transferred from Respondent to 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.
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.”
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.”).
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.
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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