Westmore · UDRP DecisionUpforitdating.com
The Panel ordered transfer of <upforitdating.com> based on the Respondent's express consent to transfer. Relying on WIPO Overview 2.0, paragraph 4.13, and The Cartoon Network LP, LLLP v. Mike Morgan, WIPO Case No. D2005-1132, the Panel concluded that it could order transfer without considering the substantive UDRP grounds. Accordingly, none of the three UDRP elements was adjudicated on the merits.
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This decision illustrates the consent-to-transfer procedure: where the complainant seeks transfer and the respondent expressly agrees, a panel may order transfer without making findings on confusing similarity, rights or legitimate interests, or bad faith. The transfer outcome therefore should not be treated as a substantive finding that the Complainant proved any of the three UDRP elements.
Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.
WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Bulova Invest Ltd v. Nichola Craven, EFA Limited Case No. D2015-0532 1. The Parties The Complainant is Bulova Invest Ltd of Road Town, Tortola, Virgin Islands, Overseas Territory of the United Kingdom of Great Britain and Northern Ireland (“United Kingdom”), represented by Mapa Trademarks SL, Spain. The Respondent is Nichola Craven, EFA Limited of Weybridge, Surrey, United Kingdom. 2. The Domain Name and Registrar The disputed domain name <upforitdating.com> (the “Domain Name”) is registered with Webfusion Ltd trading as 123-reg (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 26, 2015. On March 26, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On March 27, 2015, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”). In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on March 31, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was April 20, 2015. The Center received an email communication from the respondent’s email address (as listed in the whoIs and confirmed by the Registrar) on March 31, 2015 and April 17, 2015 indicating that the Respondent wished to transfer the Domain Name to the Complainant. However, the Complainant did not file a suspension request. The Respondent did not submit any substantive response. Accordingly, the Center notified the parties of the commencement of the Panel appointment process on April 21, 2015. The Center appointed Dawn Osborne as the sole panelist in this matter on April 27, 2015. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7. 4. Factual Background The Complainant is the owner of a United States of America and Community Trade Mark for UPFORIT for, inter alia , dating services registered first in time at OHIM in May 2012. The Domain Name, registered in August 2012, has been used to provide dating services. The Respondent has agreed to transfer the Domain Name to the Complainant. 5. Parties’ Contentions A. Complainant The Complainant’s contentions can be summarised as follows: The Complainant is the owner of a United States of America and Community Trade Mark for UPFORIT for, inter alia , dating services and the mark has been used in commerce for adult dating services since September 2010. The Complainant owns the domain name <upforit.com> to which its web site is linked. The Domain Name is offering exactly the same kinds of services as the Complainant in the United Kingdom. It is confusingly similar to the Complainant’s trade mark. ‘Dating’ is merely descriptive of the services provided and the Complainant’s trade mark is used as UPFORITDATING on Twitter. The generic Top-Level Domain “.com” may typically be disregarded when comparing a domain name to a trade mark. The Respondent has no rights or legitimate interests in the Domain Name. It is not a licensee of and has no authorisation from the Complainant. The Respondent does not appear to hold any relevant trade marks. Trading on the trade mark significance of the Complainant’s trade mark with an intention of deriving advantage from consumer confusion is not a bona fide offering of goods and services under the Policy. The Domain Name was registered and used in bad faith as it resolves to a web page which resembles the Complainant’s web page associated with the Complainant’s UPFORIT mark. Using a domain name which is identical or confusingly similar to the Complainant’s UPFORIT mark for a competing web site means that the Respondent is using the Domain Name to create confusion among Internet users to attract visitors to the Respondent’s web site for commercial gain. Proof of confusion is provided by a third party review of the Complainant’s web site where the picture taken to illustrate the Complainant’s site in the review is, in fact, from the Respondent’s web site attached to the Domain Name, clearly showing confusion between the Complainant’s web site and that of the Respondent. It is a negative review proving damage to the Complainant’s brand as a result of such confusion. B. Respondent The Respondent did not reply to the Complainant’s contentions, but has agreed to transfer the Domain Name to the Complainant in an email communication filed with the Center. 6. Discussion and Findings Paragraph 4(a) of the Policy requires that, in order to obtain the transfer of the disputed domain name the Complainant must prove: (i) The domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and (ii) The Respondent has no rights or legitimate interests with respect to the domain name; and (iii) The domain name has been registered and is being used in bad faith However, this Panel notes that consent to transfer by the Respondent can provide a basis for an order for transfer without a need for consideration of the UDRP grounds. The Panel notes the WIPO Overview of WIPO Panel Views on Selected UDRP Questions , Second Edition (“WIPO Overview 2.0”), paragraph 4.13 and The Cartoon Network LP, LLLP v. Mike Morgan , WIPO Case No. D2005-1132 , and finds that when the Complainant seeks transfer of the disputed domain name, and the Respondent agrees to transfer, the Panel may proceed immediately to make an order for transfer. Accordingly, given the consent of the Respondent to transfer the Domain Name to the Complainant the Panel will order the transfer of the Domain Name. 7. Decision For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name, <upforitdating.com> be transferred to the Complainant. Dawn Osborne Sole Panelist Date: May 13, 2015
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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