PHE, Inc. v. Carrie Ramalho
Claim Number: FA2010001916651
Complainant is PHE, Inc. (“Complainant”), represented by Susan Freya Olive of Olive & Olive, P.A., North Carolina, United States. Respondent is Carrie Ramalho (“Respondent”), Washington, United States.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <adamandevesexshop.com>, registered with GoDaddy.com, LLC.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Lars Karnøe as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 12, 2020; the Forum received payment on October 12, 2020.
On October 13, 2020, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <adamandevesexshop.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. 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 October 19, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 9, 2020 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@adamandevesexshop.com. Also on October 19, 2020, 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.
A timely Response was received and determined to be complete on October 27, 2020.
On October 30, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Lars Karnøe as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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 is a prophylactic and adult products online retailer. Complainant has rights in the ADAM & EVE mark through its registration with various trademark agencies throughout the world. (e.g. United States Patent and Trademark Office (“USPTO”) Reg. 1,020,448, registered Sept. 16, 1975; Canadian Intellectual Property Office (“CIPO”) Reg. TMA 595,034, registered Nov. 18, 2003). Respondent’s <adamandevesexshop.com> domain name is confusingly similar to Complainant’s mark as it incorporates the mark in its entirety and adds the words “sex shop” as well as the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights and legitimate interests in the <adamandevesexshop.com> domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed Respondent to use its ADAM & EVE mark in the disputed domain name. Respondent does not use the disputed domain name for any bona fide offering of goods or services, nor any legitimate noncommercial or fair use. Respondent attempts to pass off as Complainant to divert internet users to the disputed domain name’s resolving website, where Respondent sells either counterfeit or unauthorized products.
Respondent registered and uses the <adamandevesexshop.com> domain name in bad faith. Respondent attempts to attract internet users for commercial gain by passing off as Complainant and selling counterfeit or unauthorized products on the disputed domain name’s resolving website. Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the ADAM & EVE mark. Respondent failed to respond to Complainant’s cease-and-desist letter, and initially hid its identity behind a WHOIS privacy shield.
B. Respondent
Respondent admits it is the named Respondent and the owner of the <adamandevesexshop.com> domain name. Respond admits the allegations of Complainant. Respondent claims it removed the disputed domain name’s resolving website after receiving the Complaint and will not use it in the future for such endeavors. Respondent requests the disputed domain name be transferred to Complainant. The Panel notes that the disputed domain name was registered on Oct. 3, 2020.
The Panel will not make any findings of fact, for the reasons explained below.
Respondent does not contest any of Complainant’s allegations regarding the <adamandevesexshop.com> domain name. Rather, Respondent has consented to judgment in favor of Complainant and authorizes the immediate transfer of the subject domain name. Therefore, the Panel decides to forego the traditional UDRP analysis and order the immediate transfer of the domain name. See Boehringer Ingelheim Int’l GmbH v. Modern Ltd. – Cayman Web Dev., FA 133625 (FORUM Jan. 9, 2003) (transferring the domain name registration where the respondent stipulated to the transfer); see also Malev Hungarian Airlines, Ltd. v. Vertical Axis Inc., FA 212653 (FORUM Jan. 13, 2004) (“In this case, the parties have both asked for the domain name to be transferred to the Complainant . . . Since the requests of the parties in this case are identical, the Panel has no scope to do anything other than to recognize the common request, and it has no mandate to make findings of fact or of compliance (or not) with the Policy.”); see also Disney Enters., Inc. v. Morales, FA 475191 (FORUM June 24, 2005) (“[U]nder such circumstances, where Respondent has agreed to comply with Complainant’s request, the Panel felt it to be expedient and judicial to forego the traditional UDRP analysis and order the transfer of the domain names.”).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <adamandevesexshop.com> domain name be TRANSFERRED from Respondent to Complainant.
Lars Karnøe, Panelist
Dated: 3 November 2020
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