KeyView Labs, Inc. v. DNS Manager / Profile Group
Claim Number: FA1407001572868
Complainant is KeyView Labs, Inc. (“Complainant”), represented by Robert H. Thornburg of Allen, Dyer, Doppelt, Milbrath & Gilchrist, P.A., Florida, USA. Respondent is DNS Manager / Profile Group (“Respondent”), Delaware, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <proceraavhscam.org>, registered with Enom, Inc. (R39-Lror).
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 July 31, 2014; the National Arbitration Forum received payment on July 31, 2014.
On August 1, 2014, Enom, Inc. (R39-Lror) confirmed by e-mail to the National Arbitration Forum that the <proceraavhscam.org> domain name is registered with Enom, Inc. (R39-Lror) and that Respondent is the current registrant of the name. Enom, Inc. (R39-Lror) has verified that Respondent is bound by the Enom, Inc. (R39-Lror) 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 August 4, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 25, 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@proceraavhscam.org. Also on August 4, 2014, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Re-spondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
A timely Response was received by the National Arbitration Forum on August 25, 2014, and was determined to be complete.
On August 28, 2014, 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 Notices, as defined in Rule 1 and Rule 2.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant uses the PROCERA AVH trademark in connection with the mark-eting of dietary and nutritional supplements.
Complainant owns the PROCERA AVH mark via registration with the United States Patent and Trademark Office ("USPTO") (Registry No. 3,473,055, registered July 22, 2008).
Respondent registered the <proceraavhscam.org> domain name on or about March 6, 2013.
The domain name is confusingly similar to Complainant’s PROCERA AVH mark.
Respondent has not been commonly known by the disputed domain name.
Respondent is not authorized to use the PROCERA AVH mark in any way.
Respondent’s use of the disputed domain name is not in connection with a bona fide offering of authorized dietary supplements, nor is it fair to Complainant.
Respondent has no rights to or legitimate interests in the disputed domain name.
The disputed domain name resolves to a webpage featuring links to third-party websites that offer cognitive improvement dietary supplements, some of which promote the sale of products in competition with the business of Complainant.
Respondent uses the disputed domain name to usurp the goodwill surrounding Complainant’s mark for Respondent’s commercial benefit.
The <proceraavhscam.org> domain name was registered and is being used in bad faith.
B. Respondent
Respondent offers to promptly grant Complainant’s requested remedy as stipu-lated in the Complaint and transfer the subject domain name to Complainant without the need for further administrative proceedings.
DISCUSSION
Paragraph 4(a) of the Policy requires that, in the ordinary course, Complainant must prove each of the following in order 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 upon the written instructions of the parties to a UDRP proceeding without the need for otherwise required findings and conclusions (see, e.g., 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’s Response does not contest Complainant’s request that the <proceraavhscam.org> domain name be transferred to Complainant. Rather Respondent has given its written consent to the transfer of the domain name. Thus the parties have effectively agreed in writing to a transfer of the domain name from Respondent to Complainant without the need for further proceedings.
Accordingly, it is Ordered that the <proceraavhscam.org> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: September 1, 2014
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