Microsoft Corporation v. Dominic Bartalino
Claim Number: FA0908001282202
Complainant is Microsoft Corporation (“Complainant”), represented by James
F. Struthers, of Richard Law Group, Inc.,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <microsoftzunehd.com>, registered with Netfirms, Inc.
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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on August 31, 2009; the National Arbitration Forum received a hard copy of the Complaint on August 31, 2009.
On August 31, 2009, Netfirms, Inc. confirmed by e-mail to the National Arbitration Forum that the <microsoftzunehd.com> domain name is registered with Netfirms, Inc. and that Respondent is the current registrant of the name. Netfirms, Inc. has verified that Respondent is bound by the Netfirms, Inc. 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 September 3, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 23, 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@microsoftzunehd.com by e-mail.
On September 6, 2009 the National Arbitration Forum received an e-mail from Respondent. Because there was no indication that Respondent considers said e-mail its formal Response, it is treated as an Other Correspondence and not a Response.
Having received no formal response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On September 30, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (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. Respondent consents to the transfer.
A. Complainant makes the following assertions:
1. Respondent’s <microsoftzunehd.com> domain name is confusingly similar to Complainant’s MICROSOFT mark. Respondent’s <microsoftzunehd.com> domain name is confusingly similar to Complainant’s ZUNE mark.
2. Respondent does not have any rights or legitimate interests in the <microsoftzunehd.com> domain name.
3. Respondent registered and used the <microsoftzunehd.com> domain name in bad faith.
B. Respondent failed to submit a formal Response in this proceeding.
PRELIMINARY
ISSUE: CONSENT TO TRANSFER
On September 6, 2009 the National Arbitration Forum received an e-mail from Respondent wherein Respondent consents to transfer the <microsoftzunehd.com> domain name to Complainant. As 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 <microsoftzunehd.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 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.”).
The Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <microsoftzunehd.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: October 8, 2009
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