Complainant is BzzAgent, Inc. of Boston, Massachusetts, United States of America, represented by Michael A. Bartley, United States.
Respondent is Texas International Property Associates of Dallas, Texas, United States of America, represented by Gary Wayne Tucker, United States.
The disputed domain names <avbzz.com>, <bzzaagent.com>, <bzzagant.com>, <bzzblast.com>, and <thebzz.com> are registered with Compana LLC.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 22, 2008. On December 23, 2008, the Center transmitted by email to Compana LLC a request for registrar verification in connection with the disputed domain names. On January 6, 2009, Compana LLC transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), 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 Respondent of the Complaint, and the proceedings commenced on January 8, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was January 28, 2009. The Response was filed with the Center on January 29, 2009.
The Center appointed James W. Dabney as the sole panelist in this matter on March 30, 2009. 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.
Complainant is the record owner of (i) U.S. Reg. No. 3,136,461 issued August 29, 2006, for the service mark BZZ in International Class 35; (ii) U.S. Reg. No. 3,085,555 issued April 25, 2006, for the service mark BZZBLAST in International Class 35; and (iii) U.S. Reg. No. 3,085,518 issued April 25, 2006, for the service mark BZZAGENT in International Classes 35 and 42. Complainant has not submitted evidence concerning the extent of its actual use of these marks.
Respondent is the registrant of the domain names <avbzz.com>, <thebzz.com>, <bzzblast.com, <bzzagant.com>, and <bzzaagant.com>. Complainant alleges that each of these domain names is confusingly similar to one or more of Complainant's registered service marks. Complainant further alleges that Respondent has no rights or legitimate interests in the disputed domain names, and that Respondent registered and has used the disputed domain names in bad faith.
Complainant has submitted (i) documents asserted to be copies of web pages associated with the disputed domain names; (ii) documents asserted to be e-mail correspondence in which, among other things, Respondent agreed to transfer the domain names <bzzagant.com> and <bzzaagent.com> to Complainant in mid-2008; and (iii) a listing of what Complainant calls “68 recently decided WIPO cases against Respondent.” Complainant asserts that “Respondent is a known cyber-squatter employing the same behavior repeatedly found to be bad faith in other cases.”
In its Response dated January 29, 2009, Respondent does not admit or deny any statements or allegations contained in the Complaint. Respondent states that it “apologizes for the delay in transferring the domains to Complaint [sic] and herein agrees to the relief requested by the Complainant and will, upon order of the Panel, do so.” Respondent further states, “This is not an admission to the three elements of 4(a) of the policy but rather an offer of ‘unilateral consent to transfer' as prior Panels have deemed it.”
Complainant asserts that the evidence submitted with its Complaint establishes a legal right to a Panel-ordered transfer of the disputed domain names to Complainant.
Respondent does not admit or deny any of Complainant's allegations, but “requests that the Panel order the immediate transfer of the disputed domain name[s].”
As set forth above, Complainant and Respondent have both requested that the disputed domain names be transferred to Complainant. That being so, there is no occasion for the Panel to assess the sufficiency of Complainant's evidence or to make factual findings as might justify a decision to order an involuntary transfer of the disputed domain names.
It has been suggested in some cases that, notwithstanding a respondent's unilateral consent to transfer of disputed domain names, a panel should nevertheless proceed to decide whether a complainant's allegations and evidence would justify a Panel-ordered, involuntary transfer under paragraph 4 of the Policy. See, e.g., Tokyu Corp. v. Whois Privacy Protection Service, Inc., WIPO Case No. D2008-1406 at 7-8 (dissenting opinion). The undersigned respectfully disagrees with this view.
The purpose of factual findings in a panel decision is to explain and set forth the basis for a Panel decision to order, or not order, a requested involuntary transfer of a domain name in a particular case. The purpose of factual findings in a panel decision is not to embarrass or criticize a party with a view to influencing the party's treatment in a future case or the party's behavior in the marketplace.
In the present case, without admitting or denying fault, Respondent has consented to an award of the full relief sought by Complainant. That being so, it is unnecessary for the Panel to consider whether, in the absence of such consent, the record of this case would provide a sufficient basis for ordering the relief sought by the complainant.
For the reasons set forth above, the Panel orders that the domain names <avbzz.com>, <bzzaagent.com>, <bzzagant.com>, <bzzblast.com> and <thebzz.com> be transferred to Complainant forthwith.
James W. Dabney
Dated: April 10, 2009