Prodege, LLC v. Beucheh Maxime
Claim Number: FA2209002012036
Complainant is Prodege, LLC (“Complainant”), represented by Brian J. Focarino of Cooley LLP, Massachusetts, USA. Respondent is Beucheh Maxime (“Respondent”), Cameroon.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <ysenses.com>, registered with FastDomain Inc..
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to Forum electronically on September 14, 2022; Forum received payment on September 14, 2022.
On September 14, 2022, FastDomain Inc. confirmed by e-mail to Forum that the <ysenses.com> domain name is registered with FastDomain Inc. and that Respondent is the current registrant of the name. FastDomain Inc. has verified that Respondent is bound by the FastDomain Inc. 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 15, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 5, 2022 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@ysenses.com. Also on September 15, 2022, 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, Forum transmitted to the parties a Notification of Respondent Default. Respondent did however send an email to the Forum, see below.
On October 10, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Richard Hill as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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 states that, founded in 2005, it is an American online marketing, consumer polling, and market research company that develops consumer rewards and polling programs under various brands, including YSENSE. By 2020, Complainant’s products, including its YSENSE offering, had over 120 million users. Complainant asserts common law rights in the YSENSE mark, as a result of its extensive advertising and promotion of the services offered under the mark.
Complainant alleges that the disputed domain name is identical or confusingly similar to its YSENSE mark as it fully incorporates the mark and adds the letter “s” and the “.com” generic top-level-domain (“gTLD”).
According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized, licensed, or otherwise permitted Respondent to use the mark. Respondent does not use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, Respondent passes off as Complainant to offer services that compete with those of Complainant: the resolving website a direct copy of Complainant’s legitimate website and it displays Complainant’s company name.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent passes off as Complainant to offer competing services. Respondent had actual knowledge of Complainant’s rights in the YSENSE mark prior to registration of the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding. In its email to the Forum, Respondent states, in pertinent part: “… without knowledge of conflicting domains we registered a website which went against ICANN policies we will wish to terminate the case and the domain and will beg that charges be waived and we promise never to register such domain again.”
For the reasons set forth below, the Panel will not make any findings of fact.
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.
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."
The Panel interprets Respondent’s email to the Forum as consent to transfer the disputed domain name; this is supported by Respondent’s emails to Complainant, in which it agrees to transfer the disputed domain name. Thus, in the present case, the parties have both asked for the domain name to be transferred to the Complainant. In accordance with a general legal principle governing arbitrations as well as national court proceedings, this Panel holds that it cannot act nec ultra petita nec infra petita, that is, that it cannot issue a decision that would be either less than requested, nor more than requested by the parties. 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 Malev Hungarian Airlines, Ltd. v. Vertical Axis Inc., FA 212653 (Forum Jan. 13, 2004); see also 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 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.”).
For the reasons set forth above, the Panel will not analyze this element of the Policy.
For the reasons set forth above, the Panel will not analyze this element of the Policy.
For the reasons set forth above, the Panel will not analyze this element of the Policy.
Given the common request of the Parties, it is Ordered that the <ysenses.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: October 12, 2022
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