Howard and Morrissa
Hamburger v.
Claim Number: FA0903001254954
PARTIES
Complainant is Howard and Morissa
Hamburger (“Complainant”),
represented by Charles J. Harder, of Wolf, Rifkin, Shapiro, Schulman & Rabkin, LLP,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <haloweenstreet.com>, registered with
Compana, LLC.
PANEL
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.
James A. Carmody, Esq., as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
electronically on March 30, 2009; the
National Arbitration Forum received a hard copy of the Complaint on March 31, 2009.
On March 31, 2009, Compana, LLC confirmed by e-mail to the
National Arbitration Forum that the <haloweenstreet.com> domain name is
registered with Compana, LLC and that the
Respondent is the current registrant of the name. 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 8, 2009, a Notification
of Complaint and Commencement of Administrative Proceeding (the “Commencement
Notification”), setting a deadline of April 28, 2009 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@haloweenstreet.com by e-mail.
A timely Response was received and determined to be complete on April 28, 2009.
On May 8, 2009, pursuant to Complainant’s request
to have the dispute decided by a single-member
Panel, the National Arbitration Forum
appointed James A. Carmody, Esq., as Panelist.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant makes the following assertions:
1. Respondent’s <haloweenstreet.com> domain name at issue is confusingly similar to Complainant’s HALLOWEENSTREET mark.
2. Respondent does not have any rights or legitimate interests in the <haloweenstreet.com> domain name.
3. Respondent registered and used the domain name at issue in bad faith.
B. Respondent filed a Response consenting to transfer of the domain name at issue to the Complainant.
FINDINGS
Preliminary Issue: Consent to Transfer
Respondent consents to transfer the <haloweenstreet.com> domain name to Complainant. However, after the initiation of this proceeding, Compana LLC placed a hold on Respondent’s account and therefore Respondent cannot transfer the disputed domain name while this proceeding is still pending. As a result, in a circumstance such as this, where Respondent has not contested the transfer of the disputed domain name but instead agrees to transfer the domain name in question to Complainant, the Panel will forego the traditional UDRP analysis and order an immediate transfer of the <haloweenstreet.com> domain name. 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 s 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.”).
DECISION
The Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <haloweenstreet.com> domain name be TRANSFERRED
from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: May 22, 2009
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