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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Nutri/System IPHC, Inc. v. Jeffrey Goebel

Case No. D2008-0471

1. The Parties

The Complainant is Nutri/System IPHC, Inc., of Delaware, United States of America, represented by High Swartz LLP, United States of America.

The Respondent is Jeffrey Goebel, of Tampa, Florida, United States of America.

2. The Domain Name and Registrar

The disputed domain name <wwwnutrysystem.com> is registered with GoDaddy.com, Inc.

3. Procedural History

The Complaint (naming as Respondent “Domains by Proxy, Inc.”) was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 25, 2008. On March 28, 2008, the Center transmitted by email to GoDaddy.com, Inc. a request for registrar verification in connection with the domain name at issue. On April 1, 2008, GoDaddy.com, Inc. transmitted by email to the Center its verification response informing that Jeffrey Goebel is listed as the registrant and providing the contact details. In response to a notice of change in registrant information by the Center, the Complainant filed an amendment to the Complaint on April 4, 2008, naming “Jeffrey Goebel” as Respondent. The Center verified that the Complaint together with the amendment to the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), 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 April 9, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was April 29, 2008. On April 30, 2008, it came to the Center’s attention that a clerical error had been made in the email Complaint notification to the Respondent. Accordingly, on that date, the Center resent the Complaint notification email to the Respondent at the corrected email address, and extended the due date for Response by 20 days to May 20, 2008. No formal Response was received by the specified due date. Accordingly, the Center notified the Respondent’s default on May 21, 2008.

The Center appointed Jeffrey D. Steinhardt as the sole panelist in this matter on June 2, 2008. 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.

The Panel is satisfied that the registrar has confirmed that the registered owner of the disputed domain name is Jeffrey Goebel, of Tampa, Florida, United States of America. Domains by Proxy is simply a privacy domain name registration service. Accordingly, the Panel will treat Jeffrey Goebel as the sole Respondent. See e.g. Xtraplus Corporation v. Flawless Computers, WIPO Case No. D2007-0070.

4. Factual Background

Complainant’s parent corporation is a leading provider of weight-loss programs, which are marketed in many countries. Complainant owns many trademark registrations in the United States of America, and elsewhere, with first uses dating from the 1970s.

Publicly available records indicate that the disputed domain name was registered on February 7, 2008.

In light of the Panel’s disposition of this Complaint, it is unnecessary to describe Complainant’s contentions and factual averments in detail.

5. Parties’ Contentions

A. Complainant

Complainant alleges that the disputed domain name is confusingly similar to Complainant’s marks.¹ Complainant also alleges the Respondent has no legitimate rights or interest in the disputed domain name, and that Respondent registered and is using the domain name in bad faith.

Complainant avers that on February 29, 2008, Complainant’s counsel sent an email and letter to Respondent, requesting that Respondent cease and desist using the disputed domain name and transfer it to Complainant. That letter, which used contact details from the GoDaddy whois record, is appended to the Complaint. The letter was apparently returned as undeliverable.

Complainant requests transfer of the disputed domain name.

B. Respondent

The Respondent did not submit a reply to the Complainant’s contentions.

On April 30, 2008, however, Respondent wrote to the Center, acknowledging receipt of the Complaint and stating that the disputed domain name “had been cancelled” on April 1, 2008. On May 2, 2008, the Center replied to Respondent, describing the procedures for requesting suspension of the proceedings in the event the parties wished to purse settlement discussions. The Center’s reply was copied to Complainant’s counsel.

On May 2, 2008, Respondent emailed the Center, Complainant and the registrar as follows:

“It seems like the Domain name wwwnutrysystem.com is currently locked by Goddady.com due to submission of a dispute. On April 1^st I was on unaware of this dispute and out of recognition of the NutriSystem brand, canceled the domain name.

I wish to resolve the situation by given my consent to have the domain name transfered to NutriSystem Inc. Please advise on the steps necessary to complete this transaction.”

The Center and Panel are not aware of any further communications among the parties or with the registrar.

6. Discussion and Findings

The Rules require the Panel to decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable. Rules, paragraph 15(a). Ordinarily, a complainant must establish each element of paragraph 4(a) of the Policy, namely:

(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights;

(ii) the respondent has no rights or legitimate interests in respect of the domain name; and

(iii) the disputed domain name has been registered and is being used in bad faith.

Respondent wrote to Complainant, the Center and the registrar that he wished “to resolve the situation by [giving] my consent to have the domain name transferred to” Complainant. Having written the quoted email after receiving the Complaint, the Panel finds that Respondent unilaterally consented to the remedy sought by Complainant.

Under these circumstances, as detailed below, it is unnecessary for the Panel to determine whether Complainant has established its entitlement to transfer under paragraph 4(a) of the Rules. E.g., The Cartoon Network LP, LLLP v. Mike Morgan, WIPO Case No. D2005-1132 (where complainant sought transfer of the disputed domain name, and Respondent consented to transfer, paragraph 10 of the Rules permit a panel to proceed immediately to make order for transfer without determination of elements of paragraph 4(a)), citing Williams-Sonoma, Inc. v. EZ-Port, WIPO Case No. D2000-0207.

In Williams-Sonoma, supra, the panel explained:

Because Respondent has consented to the relief requested by Complainant, it is not necessary to review the facts supporting the claim. I am left to decide the appropriate procedure to conclude the case in a situation not directly addressed by the Rules. Several provisions provide guidance. Rule 10(a) gives the panel the discretion to conduct the proceeding in such manner as it deems appropriate under the Policy and the Rules. Rule 10(c) requires the Panel to “ensure that the proceeding takes place with due expedition.” Rule 12 permits the Panel to require further statements from the parties. Rule 17 requires the Panel to terminate the proceeding when the parties have agreed to a settlement.

Here, although Respondent has consented to the requested relief, the parties have not agreed to a formal settlement and terminating the proceeding would not effect the parties intent. Under Rules 10 and 12, the Panel appears to have authority to delay the decision and permit the parties time to submit confirmation that they have agreed to a settlement. That procedure, however, would delay this proceeding and impose unnecessary cost on both the parties and WIPO. Under the circumstances, I believe the better course is to enter an order granting the relief requested by the Complainant so that the transfer may occur without further delay.

Like the panel in Williams-Sonoma, this Panel finds Respondent’s unilateral consent means that the disputed domain name can be transferred to the Complainant without determination of the elements of paragraph 4(a). See also Valero Energy Corporation, Valero Refining & Marketing Company v. RareNames, WebReg, WIPO Case No. D2006-1336.

7. Decision

For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name, <wwwnutrysystem.com>, be transferred to the Complainant.

Jeffrey D. Steinhardt
Sole Panelist

Dated: June 16, 2008