Blu Media LLC v. FMR Media
Claim Number: FA0706000999667
Complainant is Blu Media LLC (“Complainant”), represented by Chad
Belville,
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <broestraightboys.com>, <brokenstraightboys.com>, <brokstraightboys.com>, <brokesraightboys.com>, <brokestraightbos.com>, <brokestraightboy.com>, <brokestraightbys.com>, <brokestraightoys.com>, <brokestraihtboys.com> and <broketraightboys.com>, registered with Enom, 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.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On June 13, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of July 3, 2007 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@broestraightboys.com, postmaster@brokenstraightboys.com, postmaster@brokstraightboys.com, postmaster@brokesraightboys.com, postmaster@brokestraightbos.com, postmaster@brokestraightboy.com, postmaster@brokestraightbys.com, postmaster@brokestraightoys.com, postmaster@brokestraihtboys.com and postmaster@broketraightboys.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <broestraightboys.com>, <brokenstraightboys.com>, <brokstraightboys.com>, <brokesraightboys.com>, <brokestraightbos.com>, <brokestraightboy.com>, <brokestraightbys.com>, <brokestraightoys.com>, <brokestraihtboys.com> and <broketraightboys.com> domain names are confusingly similar to Complainant’s BROKESTRAIGHTBOYS.COM mark.
2. Respondent does not have any rights or legitimate interests in the <broestraightboys.com>, <brokenstraightboys.com>, <brokstraightboys.com>, <brokesraightboys.com>, <brokestraightbos.com>, <brokestraightboy.com>, <brokestraightbys.com>, <brokestraightoys.com>, <brokestraihtboys.com> and <broketraightboys.com> domain names.
3. Respondent registered and used the <broestraightboys.com>, <brokenstraightboys.com>, <brokstraightboys.com>, <brokesraightboys.com>, <brokestraightbos.com>, <brokestraightboy.com>, <brokestraightbys.com>, <brokestraightoys.com>, <brokestraihtboys.com> and <broketraightboys.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Blu
Media LLC, hosts a website at the <brokestraightboys.com> domain name
that is a for-profit adult-oriented website.
Complainant has used its BROKESTRAIGHTBOYS.COM mark since June 2005 in
connection with its adult-oriented website.
Since that time,
Complainant has continuously used the BROKESTRAIGHTBOYS.COM mark in commerce,
and has promoted the mark in various media, including print advertising, online
advertising, and trade literature.
Respondent registered the <brokestraightboy.com> and <brokenstraightboys.com> domain
names on
Paragraph 15(a) of 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."
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
Preliminary Issue: Consent to Transfer the
Subject Domain Names
Complainant has provided evidence that Respondent has
consented to the transfer of the disputed domain names through an e-mail sent
to Complainant. The Panel finds that
this e-mail does qualify as a consent to transfer the
disputed domain names, and accordingly will forego the UDRP analysis and order
the immediate transfer of the disputed domain names. See Boehringer Ingelheim Int’l GmbH v.
Modern Ltd. – Cayman Web Dev., FA 133625 (Nat. Arb. Forum
Therefore, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <broestraightboys.com>, <brokenstraightboys.com>, <brokstraightboys.com>, <brokesraightboys.com>, <brokestraightbos.com>, <brokestraightboy.com>, <brokestraightbys.com>, <brokestraightoys.com>, <brokestraihtboys.com> and <broketraightboys.com> domain names be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: July 10, 2007
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