Cybertania, Inc v.
WildSites.com LLC c/o
Claim Number: FA0705000993007
PARTIES
Complainant is Cybertania, Inc (“Complainant”), represented by
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue (the “Disputed Domain Names”) are <ultrapassworsd.com>, <ultrapasslords.com>,
<ultrapasswolds.com>, <ultrapaswards.com>, <ultrapaswordss.com>, <ultrapoassword.com>, <freepaysite.net>, <myfreepaylist.com>, <myfreepayset.com>, <my-freepaysite.com>, <myfreepaysat.com>, and <freepaymysite.com>,
registered with Nameking.com, Inc., and <freepaysit.com>, <myfreepaysipe.com>, and <myfreepaysiste.com>, registered
with Enom, Inc.
PANEL
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.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
electronically on
On
On
On
On July 19, 2007, a Notification
of Complaint and Commencement of Administrative Proceeding (the “Commencement
Notification”), setting a deadline of August 8, 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@ultrapassworsd.com, postmaster@ultrapasslords.com, postmaster@ultrapasswolds.com, postmaster@ultrapaswards.com, postmaster@ultrapaswordss.com, postmaster@ultrapoassword.com, postmaster@freepaysite.net, postmaster@myfreepaylist.com, postmaster@myfreepayset.com, postmaster@my-freepaysite.com, postmaster@myfreepaysat.com, postmaster@freepaymysite.com, postmaster@freepaysit.com, postmaster@myfreepaysipe.com, and postmaster@myfreepaysiste.com by e-mail.
A timely Response was received and determined to be complete on
On
On
RELIEF SOUGHT
Complainant requests that the Disputed Domain Names be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
Complainant, Cybertania, Inc (“Cybertania”), represented by
- Complainant owns and operates two well-known adult entertainment websites,
<ultrapasswords.com> and <myfreepaysite.com>, which, according to web
traffic statistics, rank among the most popular adult websites in the world.
- Complainant holds valid
- The Disputed Domain Names are identical or confusingly similar to
Complainant’s trademarks. Each of the
Disputed Domain Names “incorporates the entire mark with a slight deviation”
and each is “readily recognizable as a misspelling of Complainant’s marks.”
- Respondent has no rights or legitimate interests in the Disputed
Domain Names. The Respondent’s “sole use
of the Disputed Domain Names is to divert and confuse customers searching for
Complainant’s marks.” Respondent
“obscures its association with the Disputed Domain Names” by “redirecting
Internet users to advertising for other websites with different domain names.”
- Respondent registered and uses the Disputed Domain Names in bad
faith. Respondent is “intentionally
attempting to attract Internet users to its websites for commercial gain by
creating confusion based on common misspellings of Complainant’s marks.” Respondent’s “pattern of conduct” in
registering at least 15 domain names, “each one meant to divert a greater
number of customers seeking the Complainant’s marks” is further proof that the
Disputed Domain Names were registered in bad faith.
B. Respondent
Respondent, Wildsites.com LLC, c/o
- Complainant and Respondent reached a legally binding Settlement
agreement. The Settlement Agreement
requires Respondent to transfer the Disputed Domain Names to Complainant only
after the Complainant’s dismissal of the Complaint.
- After the Settlement Agreement had been signed, Respondent questioned
-
- Further attempts to confirm
- Respondent did not immediately receive an email apparently sent by
- After confirming that
- “Respondent stipulates that it desires that the domain names be
transferred to the Complainant.”
- Respondent requests that the Complaint be dismissed in order to
enforce the Settlement Agreement and transfer the Disputed Domain Names. In the alternative, the Respondent requests
that the Panel order the transfer of the Disputed Domain Names pursuant to
Respondent’s stipulation, “without further findings of fact.”
C. Additional Submissions
In an
- Respondent had agreed to transfer the Disputed Domain Names during
the stay, and that the Complaint would be withdrawn only after the transfer
went through.
- After a series of good faith attempts to prove his identity,
- The Settlement Agreement is void because Respondent failed to
transfer the domains in question within 3 business days as required.
- Respondent had every opportunity to transfer the domains during the
stay, but failed to do so or to provide Complainant with the authorization
codes.
- So long as the resulting transfer order is binding, “Complainant does
not oppose [Respondent’s] request to issue such a decision without findings of
fact.”
FINDINGS
The panel will not make any findings of fact,
for the reasons explained below.
DISCUSSION
Though there is some disagreement and confusion as to why the parties
were not able to transfer the Disputed Domain Names after signing a Settlement
Agreement, both parties have ultimately asked the Panel to simply transfer the
domain names to the Complainant, without findings of fact.
The Rules do not expressly address how a Panel is to handle a situation
in which the parties seek the same outcome and request a transfer without
factual findings. Rule 15(a) does, however, allow the
Panel to consider “any rules and
principles of law that it deems applicable.”
An overwhelming majority of panels that have
considered this issue appear to have resolved it in favor of complying with the
parties’ joint proposal. This Panel
agrees. Given that the parties are requesting the same result, the Panel need
not make additional findings of fact in this case. Malev
Hungarian Airlines, Ltd. v. Vertical Axis Inc., FA 212653 (Nat. Arb. Forum
Jan. 13, 2004) (“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 Boehringer
Ingelheim Int’l GmbH v. Modern Ltd. – Cayman Web Dev., FA 133625 (Nat. Arb.
Forum
Moreover, the Panel notes that in
cases where the parties make the same request “it would be unwise to make any
other findings in case the same issues were to arise in later proceedings.” Kohler Co. v.
DECISION
Pursuant to the common request of the parties,
it is Ordered that the <ultrapassworsd.com>, <ultrapasslords.com>,
<ultrapasswolds.com>, <ultrapaswards.com>, <ultrapaswordss.com>, <ultrapoassword.com>, <freepaysite.net>, <myfreepaylist.com>, <myfreepayset.com>, <my-freepaysite.com>, <myfreepaysat.com>, <freepaymysite.com>, <freepaysit.com>, <myfreepaysipe.com>,
and <myfreepaysiste.com> domain
names be TRANSFERRED from Respondent WildSites.com LLC c/o
Dated:
Click Here to return
to the main Domain Decisions Page.
Click
Here to return to our Home Page
National
Arbitration Forum