Nutramax Laboratories, Inc. v. Yang Zhi Chao
Claim Number: FA2208002006564
Complainant is Nutramax Laboratories, Inc. (“Complainant”), represented by Jenny T. Slocum of Dickinson Wright PLLC, District of Columbia, USA. Respondent is Yang Zhi Chao (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <nutramaxlas.com>, (‘the Domain Name’) registered with eName Technology Co., Ltd..
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 1, 2022; the Forum received payment on August 1, 2022.
On August 2, 2022, eName Technology Co., Ltd. confirmed by e-mail to the Forum that the <nutramaxlas.com> Domain Name is registered with eName Technology Co., Ltd. and that Respondent is the current registrant of the name. eName Technology Co., Ltd. has verified that Respondent is bound by the eName Technology Co., Ltd. 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 August 9, 2022, the Forum served the Complaint and all Annexes, including a Chinese and English language Written Notice of the Complaint, setting a deadline of August 29, 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@nutramaxlas.com. Also on August 9, 2022, the Chinese and English language 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 September 2, 2022 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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.
Complainant requests that the Domain Name be transferred from Respondent to Complainant.
PRELIMINARY ISSUE: LANGUAGE OF PROCEEDING
Pursuant to UDRP Rule 11(a), the Panel finds that persuasive evidence has been adduced by Complainant to suggest the likely possibility that the Respondent is conversant and proficient in the English language. After considering the circumstance of the present case, the Panel decides that the proceeding should be in English.
A. Complainant
The Complainant’s contentions can be summarised as follows:
The Complainant is the owner of, inter alia, the mark NUTRAMAX LABORATORIES, registered, inter alia, in the USA for supplements with first use recorded as 1991 and other registered marks incorporating NUTRAMAX. It has used the domain name nutramaxlabs.com since 1997.
The Domain Name registered in 2022 is confusingly similar to the Complainant’s NUTRAMAX LABORATORIES mark and Complainant’s domain name nutramaxlabs.com which is a shortened form of its mark in the ‘.com’ domain. The Domain Name reflects the Complainant’s domain name simply missing out a letter ‘b’ and so is a typosquatting registration.
The Respondent does not have rights or legitimate interests in the Domain Name, is not commonly known by it and is not authorised by the Complainant.
The Domain Name points to commercial pay per click links to businesses not connected with the Complainant. This cannot be a bona fide offering of goods or services or a legitimate non commercial or fair use. It is registration and use in bad faith. Typosquatting is bad faith per se.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of, inter alia, the mark NUTRAMAX LABORATORIES, registered, inter alia, in the USA for supplements with first use recorded as 1991 and other registered marks incorporating NUTRAMAX. It has used the domain name nutramaxlabs.com since 1997.
The Domain Name registered in 2022 has been used for commercial pay per click links.
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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The Complainant is the owner of, inter alia, the mark NUTRAMAX LABORATORIES, registered, in the USA for supplements with first use recorded as 1991 and other registered marks incorporating NUTRAMAX. It has used the domain name nutramaxlabs.com since 1997 and has common law rights in the same. The Domain Name consist of a sign confusingly similar to the Complainant's marks, missing out the letter ‘b’ of its shortened form nutramaxlabs.com used as a domain name.
The Panel agrees that shortening or misspellings of a complainant’s mark in a domain name do not prevent confusing similarity between that domain name and the Complainant's trade mark pursuant to the Policy. See Coachella Music Festival LLC v. Domain Administrator/China Capital Investment Limited, FA 1734230 (Forum July 17, 2017). As such shortening laboratories to ‘labs’ while missing out a letter ‘b’ does not prevent the Domain Name being confusingly similar to the Complainant’s trade marks under the Policy.
The gTLD ‘.com’ does not serve to distinguish the Domain Name from the Complainant’s NUTRAMAX LABORATORIES mark. See Red Hat Inc. v. Haecke, FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Name is confusingly similar to the Complainant’s trade marks.
As such the Panel holds that Paragraph 4(a)(i) of the Policy has been satisfied.
Rights or Legitimate Interests
The Complainant has not authorised the use of its marks. There is no evidence or reason to suggest the Respondent is, in fact, commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark). The use is commercial so cannot be legitimate non commercial fair use.
It is clear from the evidence that the Respondent has used the pages attached to the domain name to link to businesses competing with the Complainant through pay per link links. The usage of the Complainants’ marks which have a significant reputation in relation to similar services not connected with the Complainants is not fair as the page attached to the Domain Name does not make it clear that there is no commercial connection with the Complainant. As such it cannot amount to the bona fide offering of goods and services or a legitimate commercial or fair use. See Ashley Furniture Industries Inc. v. domain admin / private registrations aktien Gesellschaft, FA 1506001626253 (Forum July 29, 2015).
The Domain Name is a typosquatting registration differing by only one letter from the Complainant’s domain name nutramaxlabs.com. Typosquatting is also an indication of a lack of rights or a legitimate interests. See Cubist Pharmaceuticals, Inc. v. Gregory Stea, FA1403001550388 (Forum May 5, 2014)
The Respondent has not responded to the Complaint or offered any explanation.
As such the Panelist finds that the Respondent does not have rights or legitimate interests in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
The Domain Name seeks to take advantage of the situation where Internet users may make a typographical error. Typosquatting itself is evidence of relevant bad faith registration and use. See Diners Club int'l Ltd. v. Domain Admin ****** It's all in the name ******, FA 156839 (Forum June 23, 2003) (registering a domain name in the hope that Internet users will mistype the Complainant’s mark and be taken to the Respondent’s site is registration and use in bad faith).
Respondent is using the Domain Name to point to pay per click links to make profit from promoting services not associated with the Complainant in a disruptive and confusing manner. See Health Republic Insurance Company v. above.com Legal, FA 1506001622068 (Forum July 10, 2015) (‘The use of a domain name’s resolving web site to host links to competitors of a complainant shows intent to disrupt that Complainant’s business thereby showing bad faith in use and registration under Policy 4(b)(iii).’). Additionally the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to competing websites by creating a likelihood of confusion with the Complainant's trade marks as to the source, sponsorship, affiliation or endorsement of the web site and services offered on it under Policy 4(b)(iv). See also Capital One Financial Corp v. DN Manager/Whois-Privacy.Net Ltd, FA 1504001615034 (Forum June 4, 2015).
As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under para 4(b)(iii) and (iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <nutramaxlas.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: September 2, 2022
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