national arbitration forum

 

DECISION

 

Gaspari Nutrition, Inc. v. GLOBING

Claim Number: FA1107001397081

 

PARTIES

Complainant is Gaspari Nutrition, Inc. (“Complainant”), represented by Gregory M. Krakau of Morse, Barnes-Brown & Pendleton, P.C., Massachusetts, USA.  Respondent is GLOBING (“Respondent”), Netherlands.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <gasparishop.com>, registered with Tucows.

 

PANEL

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

 

Terry F. Peppard as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum electronically on July 5, 2011; the National Arbitration Forum received payment on July 5, 2011.

 

On July 6, 2011, Tucows confirmed by e-mail to the National Arbitration Forum that the <gasparishop.com> domain name is registered with Tucows and that Respondent is the current registrant of the name.  Tucows has verified that Respondent is bound by the Tucows registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).

 

On July 6, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 26, 2011 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@gasparishop.com.  Also on July 6, 2011, the Written Notice of the Complaint, notifying Respondent of the email addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.

 

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

 

On August 1, 2011, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.

 

Respondent has not filed a response to the Complaint in this proceeding in compliance with the requirements of the Policy or of its implementing Rules.   However, Respondent has communicated with the National Arbitration Forum by means of e-mail messages.  Those communications will be considered in determining an appropriate disposition of the Complaint.

 

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" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. 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 a compliant response from Respondent.

 

RELIEF SOUGHT

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

 

PARTIES' CONTENTIONS

A.  Complainant makes the following assertions:

 

Complainant is a provider of dietary and nutritional supplements. 

 

Complainant owns trademark registrations for the GASPARI NUTRITION mark with the Office for Harmonization in the Internal Market (“OHIM”) (including Reg. No. 1,000,939, registered April 26, 2010). 

 

Respondent registered the disputed domain name on December 29, 2010. 

 

The disputed domain name resolves to a website selling Complainant’s dietary and nutritional supplements without authorization from Complainant.

 

Respondent’s <gasparishop.com> domain name is confusingly similar to Complainant’s GASPARI mark.

 

Respondent cannot claim that it has been commonly known by the disputed domain name.

 

Respondent has no authorization from complainant to use the GASPARI mark in a domain name.

 

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

 

Respondent both registered and uses the <gasparishop.com> domain name in bad faith.

 

B.  Respondent failed to submit a Response in this proceeding in compliance with the requirements of the Policy and its implementing Rules.  However, in

An e-mail communication addressed to the National Arbitration Forum, Respondent has recited that: “they [Complainant] can have the domain name.”

 

DISCUSSION

Paragraph 4(a) of the Policy requires that, in the ordinary course, Complainant must prove each of the following to obtain from a Panel an order that a domain name be transferred:

 

i.      the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights;

ii.     Respondent has no rights or legitimate interests in respect of the domain name; and

iii.    the domain name has been registered and is being used in bad faith.

 

Notwithstanding the foregoing, 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.”

 

Further, Policy ¶ 3(a) provides for the transfer of a domain name registration upon the written instructions of the parties to a UDRP proceeding without the need for otherwise required findings and conclusions (see, for example, Malev Hungarian Airlines, Ltd. v. Vertical Axis Inc., FA 212653 (Nat. Ar. Forum Jan. 13, 2004;  see also Disney Enterprises, Inc. v. Morales, FA 475191 (Nat. Arb. Forum Jun. 24, 2005)). 

 

DECISION

Respondent does not contest the material allegations of the Complaint, and, in particular it does not contest Complainant’s request that the disputed domain name be transferred to Complainant, but rather recites in written communication that Complainant “can have the domain name.” Thus the parties have effectively agreed in writing to a transfer of the subject domain name from Respondent to Complainant without the need for further proceedings.

 

It is therefore Ordered that the <gasparishop.com> domain name be forthwith TRANSFERRED from Respondent to Complainant.

 

 

 

Terry F. Peppard, Panelist

Dated:  August 9, 2011

 

 

 

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