FORUM

DECISION

Vitagoods, LLC v. Simon Velez
Claim Number: FA1701001712448

PARTIES

Complainant is Vitagoods, LLC ("Complainant"), represented by Amanda V. Dwight of Burkhalter Kessler Clement & George LLP, California, USA. Respondent is Simon Velez ("Respondent"), Florida, USA.

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <thevanityplanet.com>, registered with

Domain.com, LLC.

PANEL

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 A. Einhorn as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the FORUM electronically on January 13,

2017; the FORUM received payment on January 13, 2017.

On January 13, 2017, Domain.com, LLC confirmed by e-mail to the FORUM that the <thevanityplanet.com> domain name is registered with Domain.com, LLC and that Respondent is the current registrant of the name. Domain.com, LLC

has verified that Respondent is bound by the Domain.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 January 17, 2017, the FORUM served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 6, 2017 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@thevanityplanet.com. Also on January 17, 2017, 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.

Having received no response from Respondent, the FORUM transmitted to the parties a Notification of Respondent Default.

On February 20, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the FORUM appointed David A. Einhorn 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.

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to

Complainant.

PARTIES' CONTENTIONS

A. Complainant

Complainant, Vitagoods LLC, is a retailer of home and beauty products. In connection with this business, Complainant uses the VANITY PLANET mark to sell retail health and beauty products at its website, <vanityplanet.com>. Complainant has rights to the VANITY PLANET mark based upon its trademark application with the United States Patent and Trademark Office ("USPTO") (Ser. No. 87,265,926, filed Dec. 12, 2016). Complainant also relies on Common Law rights in the mark. Respondent's <thevanityplanet.com> is identical or confusing similar to the VANITY PLANET mark, as it contains the mark in its entirety.

Respondent has no rights or legitimate interests in the <thevanityplanet.com> domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed Respondent to use the VANITY PLANET mark for any reason. Respondent's use of the disputed domain name does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, the domain name resolves to a website that is nearly identical to Complainant's and purports to offer for sale products that compete with Complainant's products.

Respondent has registered and used the disputed domain name in bad faith. Respondent is using the domain name and resolving website to divert Internet users to its competing website for commercial gain. Additionally, Respondent is

using the disputed domain name to run a fraudulent scheme in which it accepts orders and payment but does not ship goods. Further, Respondent had actual knowledge of Complainant and Complainants rights in the VANITY PLANET mark at the time it registered and subsequently used the disputed domain name.

B. Respondent

Respondent did not submit a Response in this proceeding. The Panel notes that, in email correspondence, Respondent urges, "We would like to transfer the domain, please advise what needs to be done to do so." Complainant did not reply.

The Panel further notes that <thevanityplanet.com> was registered on September 19, 2016.

FINDINGS and DISCUSSION

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.

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(f), 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 (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.").

Preliminary Issue: Consent to Transfer

The FORUM was copied on documentation submitted from Respondent to Complainant. In this document, Respondent consents to the transfer of the <thevanityplanet.com> domain name.

Respondent purports to consent to transfer the <thevanityplanet.com> domain

name to Complainant.                                 However, after the initiation of this proceeding,
Domain.Com, LLC placed a hold on Respondent's account and therefore Respondent cannot transfer the disputed domain name while this proceeding is still pending. The Panel finds that in these circumstances, where Respondent has not contested the transfer of the disputed domain name but instead agrees to transfer the domain name in question to Complainant, it is appropriate for the Panel to forego the traditional UDRP analysis and to order an immediate transfer of the <thevanityplanet.com> 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 Maley Hungarian Airlines, Ltd. v. Vertical Axis Inc., FA 212653 (Nat Arb. 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.").

DECISION

As Respondent has agreed to transfer of the disputed domain name, the Panel

concludes that relief shall be GRANTED.

Accordingly, it is Ordered that the <thevanityplanet.com> domain name be TRANSFERRED from Respondent to Complainant

 

 

 

David A. Einhorn, Panelist
Dated: February 28, 2017