Shutterstock, Inc. v. Norbert Pikulski
Claim Number: FA1403001550063
Complainant is Shutterstock, Inc. (“Complainant”), represented by Michael C. Lesser of Shutterstock, Inc., New York, USA. Respondent is Norbert Pikulski (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain names at issue are <shutterstpck.com> and <shutterst0ck.com>, registered with GODADDY.COM, LLC.
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.
Hon. Karl V. Fink (Ret.), as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on March 21, 2014; the National Arbitration Forum received payment on March 21, 2014.
On March 21, 2014, GODADDY.COM, LLC confirmed by e-mail to the National Arbitration Forum that the <shutterstpck.com> and <shutterst0ck.com> domain names are registered with GODADDY.COM, LLC and that Respondent is the current registrant of the names. GODADDY.COM, LLC has verified that Respondent is bound by the GODADDY.COM, LLC 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 March 24, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 14, 2014 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@shutterstpck.com, postmaster@shutterst0ck.com. Also on March 24, 2014, the Written Notice of the Complaint, notifying Respondent of the e-mail 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 April 21, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. Karl V. Fink (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" 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 any response from Respondent.
Procedural Issue: Concurrent Court Proceedings
In an e-mail to the National Arbitration Forum, Complainant advised that it has commenced a civil litigation action against Respondent. The proceeding is captioned Shutterstock, Inc. v. Norbert Pikulski, an individual d/b/a shutterst9ck.com, shjtterstock.com, ehutterstock.com, zhutterstock.com, whutterstock.com, shutterstpck.com, sh7tterstock.com, and shutterst0ck.com; and DOES 1-10, Civil Action No. 3:14-cv-869-WQH-NLS (S.D.Cal.). Complainant notes that this case involves the domain names in dispute in this arbitration proceeding. Among other relief, the Complainant requests that the disputed names be transferred to Complainant.
In situations where concurrent court proceedings are pending, as is the situation with respect to the instant Complaint, some panels have chosen to proceed with the UDRP filing. See eProperty Direct LLC v. Miller, FA 836419 (Nat. Arb. Forum Jan. 3, 2007). Alternatively, other panels have chosen not to proceed with the UDRP because of the pending litigation. See AmeriPlan Corp. v. Gilbert FA105737 (Nat. Arb. Forum Apr. 22, 2002) (Regarding simultaneous court proceedings and UDRP disputes, Policy ¶ 4(k) requires that ICANN not implement an administrative panel’s decision regarding a UDRP dispute “until the court proceeding is resolved.” Therefore, a panel should not rule on a decision when there is a court proceeding pending because “no purpose is served by [the panel] rendering a decision on the merits to transfer the domain name, or have it remain, when as here, a decision regarding the domain name will have no practical consequence.”). For the same reason, the Panel will not render a decision on the merits in this case.
Because of the pending court case requesting transfer of the domain names the panel will not decide this dispute on the merits.
For the reason set forth above, it is ORDERED that this case is dismissed without prejudice.
Hon. Karl V. Fink (Ret.), Panelist
Dated: April 28, 2014
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