EMVCO, LLC c/o Visa Holdings v. Gary Deroos
Claim Number: FA1509001637575
Complainant is EMVCO, LLC c/o Visa Holdings ("Complainant"), represented by Patchen M. Haggerty of Perkins Coie LLP, Washington, USA. Respondent is Gary Deroos ("Respondent"), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <emv-compliant.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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 11, 2015; the Forum received payment on September 14, 2015.
On September 15, 2015, GoDaddy.com, LLC confirmed by email to the Forum that the <emv-compliant.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 September 17, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 7, 2015 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@emv-compliant.com. Also on September 17, 2015, the Written Notice of the Complaint, notifying Respondent of the email 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.
On September 18, 2015, the Forum received email correspondence from Respondent stating as follows: "I have no issue with the case. Godaddy and or you can take the website emv-compliant.com." Respondent confirmed this position in a subsequent email message received by the Forum on October 13, 2015, following the appointment of the Panel: "I already responded. Emvco can have site."
Having received no formal response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On October 13, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the 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 name be transferred from Respondent to Complainant.
A. Complainant
Complainant has used the EMV trademark in connection with secure payment transactions continuously since 1999. The mark refers to Complainant's founding member organizations, Europay, MasterCard, and Visa, and is the subject of numerous trademark registrations in the United States and other countries.
Complainant contends that the disputed domain name <emv-compliant.com>, registered by Respondent through a privacy registration service on January 30, 2015, is confusingly similar to its EMV mark. Complainant contends further that Respondent has no rights or legitimate interests in the disputed domain name, and that the disputed domain name was registered and is being used in bad faith. In support thereof, Complainant states that Respondent is not commonly known by the domain name; that he has not been authorized to use Complainant's mark; and that he registered and is using the domain name in connection with a website that provides goods and services in competition with those offered under Complainant's mark, falsely suggesting an affiliation with or certification by Complainant.
B. Respondent
Respondent failed to submit a formal Response in this proceeding. In email correspondence to the Forum, Respondent has consented to the transfer requested by Complainant.
In light of Respondent's consent to transfer the disputed domain name, the Panel finds that Complainant is entitled to the requested transfer.
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."
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.
Where a Respondent unilaterally consents to transfer a domain name in a proceeding under the Policy, the Panel may forego analyzing the elements set forth in the Policy and simply order a transfer of the domain name. See, e.g., BBY Solutions, Inc. v. Zip.ca / Curt Millar, FA 1365325 (Nat. Arb. Forum Feb. 7, 2011). On the other hand, where the consent to transfer is itself offered in bad faith (for example, to permit a serial cybersquatter to avoid having adverse findings entered against it), the Panel may proceed with the traditional analysis notwithstanding the Respondent's request. See, e.g., Enterprise Holdings, Inc. v. Muscari Holding Limited / Administration Dom, FA 1346463 (Nat. Arb. Forum Nov. 8, 2010).
The Panel here considers it appropriate to award the relief requested by Complainant and consented to by Respondent in the interest of efficiency and expedience. The Panel therefore concludes, solely for purposes of this proceeding and without analyzing the specific requirements set forth in Paragraph 4(a) of the Policy, that Complainant has met its burden of proving these requirements and is entitled to the relief it seeks.
Having considered the elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <emv-compliant.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: October 14, 2015
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