Nutri/System, IPHC, Inc. v. Texas International Property Associates
Case No. D2007-0864
1. The Parties
Complainant is Nutri/System, IPHC, Inc., Wilmington, Delaware, United States of America, represented by Morgan, Lewis & Bockius LLP, United States of America.
Respondent is Texas International Property Associates, Dallas, Texas, United States of America, represented by Law offices of Gary Wayne Tucker, United States of America.
2. The Domain Name and Registrar
The disputed domain name <nutrisytems.com> is registered with Compana LLC.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 12, 2007. On June 14, 2007, the Center transmitted by email to Compana LLC a request for registrar verification in connection with the domain name at issue. On July 5, 2007, Compana LLC transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details. A notification of Complaint deficiency was made on July 9, 2007, and an Amended Complaint was received July 12, 2007 (by email) and on July 16, 2007 (hard copy). The Center verified that 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 Respondent of the Complaint, and the proceedings commenced on July 18, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was August 7, 2007. The Response was filed with the Center on August 7, 2007. Thereafter attempts were made to settle this matter, and a notification of suspension was issued on September 17, 2007, followed by an extension of the suspension on November 6, 2007. The procedure was reinstated, at Complainant’s, request on December 7, 2007.
The Center appointed Nicolas Ulmer as the sole panelist in this matter on December 17, 2007. 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.
4. Factual Background
Complainant and its parent and related companies are in the field of providing “weight-loss programs” food and products. Complainant has registered numerous United States of America trademarks with various iterations of “Nutrisystem”, “Nutrisystem.com” and “Nutrisystem nourish”, and has operated or owned a website at “www.nutrisystem.com” for some ten years.
Respondent has registered the disputed domain name of <nutrisystems.com> – which adds an “s” to Complainants marks and domain name.
5. Parties’ Contentions
A. Complainant
Complainant submits a detailed Complaint to the effect that all elements of paragraph 4(a) of the Policy are met and that the disputed domain name should be transferred from Respondent, who is alleged to be “notorious for its bad faith registration of domain names”, to Complainant.
B. Respondent
In its Response “Respondent agrees to the relief requested by the Complainant”, i.e. the transfer of the disputed domain name to Complainant. Respondent further specifies that this is not an admission that the elements of paragraph 4(a) of the Policy are satisfied, it is merely a “unilateral consent to transfer”.
6. Discussion and Findings
As Respondent expressly and unambiguously consents to the remedy sought by Complainant, and has therefore not submitted any arguments or evidence in defence, it is unnecessary and idle to detail whether the elements of paragraph 4(a) of the Policy are met. This panel agrees with and adopts the reasoning of the decision in The Cartoon Network LP, LLLP v. Mike Morgan, WIPO Case No. D2005-1132.
“[T]his Panel considers that a genuine unilateral consent to transfer by the Respondent provides a basis for an immediate order for transfer without consideration of the paragraph 4(a) elements. Where the Complainant has sought transfer of a disputed domain name, and the Respondent consents to transfer, then pursuant to paragraph 10 of the Rules the Panel can proceed immediately to make an order for transfer. This is clearly the most expeditious course.”
