B & H Foto & Electronics Corp. v. Gabi Eskinazi
Claim Number: FA1311001528226
Complainant is B & H Foto & Electronics Corp. (“Complainant”), New York, USA. Respondent is Gabi Eskinazi (“Respondent”), Florida, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bhphotovideobrasil.com>, registered with 1 & 1 INTERNET AG.
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.
Complainant submitted a Complaint to the National Arbitration Forum electron-ically on November 5, 2013; the National Arbitration Forum received payment on November 5, 2013.
On November 11, 2013, 1 & 1 INTERNET AG confirmed by e-mail to the Nation-al Arbitration Forum that the <bhphotovideobrasil.com> domain name is register-ed with 1 & 1 INTERNET AG and that Respondent is the current registrant of the name. 1 & 1 INTERNET AG has verified that Respondent is bound by the 1 & 1 INTERNET AG registration agreement and has thereby agreed to resolve do-main disputes brought by third parties in accordance with ICANN’s Uniform Do-main Name Dispute Resolution Policy (the “Policy”).
On November 12, 2013, the Forum served the Complaint and all Annexes, in-cluding a Written Notice of the Complaint, setting a deadline of December 2, 2013 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, adminis-trative, and billing contacts, and to postmaster@bhphotovideobrasil.com. Also on November 12, 2013, the Written Notice of the Complaint, notifying Respond-ent of the e-mail addresses served and the deadline for a Response, was trans-mitted to Respondent via post and fax, to all entities and persons listed on Re-spondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent that was compliant with the re-quirements of the Policy and its accompanying Rules, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On December 4, 2013, 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.
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 Not-ices, 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 any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant uses the B & H trademark to market goods and services related to photography and videography.
Complainant holds registrations for the B & H trademark, which are on file with the United States Patent and Trademark Office ("USPTO"), including Registry No. 2,229,004, registered on March 2, 1999.
Complainant has also registered with the USPTO its B & H PHOTO VIDEO PRO AUDIO mark (Registry No. 2,230,867, registered on March 9, 1999).
Respondent registered the disputed domain name <bhphotovideobrasil.com> on October 31, 2013.
The domain name is confusingly similar to each of Complainant’s B & H and B & H PHOTO VIDEO PRO AUDIO marks.
Respondent has not been commonly known by the <bhphotovideobrasil.com> domain name.
Respondent is not a licensee or affiliate of Complainant, and Respondent has no legal right to use Complainant’s trademarks in any manner.
Complainant has not sponsored, endorsed or otherwise shown any sign that it approves of Respondent’s use of the B & H mark in a domain name.
Complainant has legitimate websites in the Portuguese language that target the Brazilian market.
Respondent uses the <bhphotovideobrasil.com> domain name to host a Portu-guese language online store that sells video and photography equipment in com-petition with the business of Complainant.
Respondent has no rights to or legitimate interests in the disputed domain name.
Respondent uses the <bhphotovideobrasil.com> domain name to capitalize on the likelihood that Internet users will assume that it and the resolving website are affiliated with Complainant.
The resolving website mimics the design of Complainant’s own websites.
Respondent was aware of Complainant and its rights in the B & H marks when it registered the domain name.
Respondent both registered and uses the contested domain name in bad faith.
B. Respondent
Respondent
has failed to submit a Response in this proceeding which was com-pliant with
the requirements of the Policy and its accompanying Rules. However, in an
e-mail message addressed to the National Arbitration Forum, Respondent has
recited as follows: “I already stated before that you can keep the domain
name. The dispute is not necessary.”
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 accord-ance 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 up-on the written instructions of the parties to a UDRP proceeding without the need for otherwise required findings and conclusions (see, for example, Malev Hungar-ian Airlines, Ltd. v. Vertical Axis Inc., FA 212653 (Nat. Ar. Forum January 13, 2004; see also Disney Enterprises, Inc. v. Morales, FA 475191 (Nat. Arb. Forum June 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. Rather, Respondent has submitted a written declaration that it has no objection to Complainant’s acquisition of 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.
Accordingly, it is hereby Ordered that the <bhphotovideobrasil.com> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: December 10, 2013
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