national arbitration forum




Roex Inc. v. Richard Schnnel

Claim Number: FA0709001073963



Complainant is Roex Inc. (“Complainant”), represented by Jay H. Geller, of Jay H. Geller a Prof. Corp., West Tower Suite 4000, 2425 W. Olympic Bl., Santa Monica, CA 90404.  Respondent is Richard Schnnel (“Respondent”), 6336 Montgomery Road, Cincinnati, OH 45213, USA.



The domain name at issue is <>, registered with Schlund+Partner Ag.



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.


James A. Carmody, Esq., as Panelist.



Complainant submitted a Complaint to the National Arbitration Forum electronically on September 4, 2007; the National Arbitration Forum received a hard copy of the Complaint on September 4, 2007.


On September 5, 2007, Schlund+Partner Ag confirmed by e-mail to the National Arbitration Forum that the <> domain name is registered with Schlund+Partner Ag and that Respondent is the current registrant of the name.  Schlund+Partner Ag has verified that Respondent is bound by the Schlund+Partner Ag registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").


On September 17, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of October 8, 2007 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to by e-mail.


Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.


On October 11, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A. Carmody, Esq., as Panelist.


Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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."  Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration 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 makes the following assertions:


1.      Respondent’s <> domain name is identical to Complainant’s THE TRUTH ABOUT NUTRITION mark.


2.      Respondent does not have any rights or legitimate interests in the <> domain name.


3.      Respondent registered and used the <> domain name in bad faith.


B.  Respondent failed to submit a Response in this proceeding.



Complainant, Roex Inc., registered its THE TRUTH ABOUT NUTRITION mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,934,179 issued March 15, 2005).  Complainant holds the registration for educational and entertainment purposes, including in the health, nutrition, and exercise areas.  Complainant filed for registration on July 14, 2003 and first used the mark in commerce in April 2002.


Respondent, Richard Schnnel, registered the disputed domain name on November 24, 2003.  The disputed domain name resolves to a website with no active use.



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."


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(e), 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory.  See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).


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.


Identical and/or Confusingly Similar


Complainant must first establish its rights in the THE TRUTH ABOUT NUTRITION mark.  Complainant is able to establish rights in the mark dating back to its USPTO filing date of July 14, 2003.  The Panel finds that Complainant has met its initial burden under Policy ¶ 4(a)(i) establishing rights in the mark.  See Planetary Soc’y v. Rosillo, D2001-1228 (WIPO Feb. 12, 2002) (holding that the effective date of the complainant’s trademark rights date back to the application’s filing date); see also Thompson v. Zimmer, FA 190625 (Nat. Arb. Forum Oct. 27, 2003) (“As Complainant’s trademark application was subsequently approved by the U.S. Patent and Trademark Office, the relevant date for showing ‘rights’ in the mark for the purposes of Policy ¶ 4(a)(i) dates back to Complainant’s filing date.”); Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004) (“Registration of the NASAL-AIRE mark with the USPTO establishes Complainant's rights in the mark.”).


The <> domain name simply removes the spaces and appends Complainant’s THE TRUTH ABOUT NUTRITION mark with the generic top-level domain (“gTLD”) “.com.”  Accordingly, the Panel finds that the disputed domain is identical to Complainant’s mark pursuant to Policy ¶ 4(a)(i).  See Hannover Ruckversicherungs-AG v. Ryu, FA 102724 (Nat. Arb. Forum Jan. 7, 2001) (finding <> to be identical to HANNOVER RE, “as spaces are impermissible in domain names and a generic top-level domain such as ‘.com’ or ‘.net’ is required in domain names”); see also Pomellato S.p.A v. Tonetti, D2000-0493 (WIPO July 7, 2000) (finding <> identical to the complainant’s mark because the generic top-level domain (gTLD) “.com” after the name POMELLATO is not relevant).


The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(i).


Rights or Legitimate Interests


Policy ¶ 4(a)(ii) requires Complainant to make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name.  The Panel finds that Complainant’s allegation that Respondent lacks such rights and interests is sufficient to shift the burden to Respondent to prove that rights or legitimate interests exist.  See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent. Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”); see also Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that, where the complainant has asserted that the respondent has no rights or legitimate interests with respect to the domain name, it is incumbent on the respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”).


In this case, Respondent did not submit a Response, permitting the Panel to presume that it lacks rights or legitimate interests in the disputed domain name.  See Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding it appropriate for the panel to draw adverse inferences from the respondent’s failure to reply to the complaint); see also Parfums Christian Dior v. QTR Corp., D2000-0023 (WIPO Mar. 9, 2000) (finding that by not submitting a response, the respondent has failed to invoke any circumstance which could demonstrate any rights or legitimate interests in the domain name).  Although no further analysis is required, the Panel will now examine the evidence to determine if Respondent’s rights or legitimate interests in the disputed domain name exist under Policy ¶ 4(c).


Nothing in the record, including the WHOIS information, suggests that Respondent, “Richard Schnnel,” is commonly known by the <> domain name.  Therefore, the Panel finds that Respondent has not satisfied Policy ¶ 4(c)(ii).  See Am. Online, Inc. v. World Photo Video & Imaging Corp., FA 109031 (Nat. Arb. Forum May 13, 2002) (finding that the respondent was not commonly known by <> or <> because the respondent was doing business as “Sunset Camera” and “World Photo Video & Imaging Corp.”); see also Am. W. Airlines, Inc. v. Paik, FA 206396 (Nat. Arb. Forum Dec. 22, 2003) (“Respondent has registered the domain name under the name ‘Ilyoup Paik a/k/a David Sanders.’  Given the WHOIS domain name registration information, Respondent is not commonly known by the [<>] domain name.”).


Further, the disputed domain name resolves to a website that has no active use.  Such inactivity does not meet the criteria of a bona fide offering of services or goods or a noncommercial or fair use as required by the Policy.  Accordingly the Panel concludes that Respondent is unable to establish rights or legitimate interests under Policy ¶¶ 4(c)(i) or 4(c)(iii).  See Pharmacia & Upjohn AB v. Romero, D2000-1273 (WIPO Nov. 13, 2000) (finding no rights or legitimate interests where the respondent failed to submit a response to the complaint and had made no use of the domain name in question); see also Vestel Elektronik Sanayi ve Ticaret AS v. Kahveci, D2000-1244 (WIPO Nov. 11, 2000) (“Merely registering the domain name is not sufficient to establish rights or legitimate interests for purposes of paragraph 4(a)(ii) of the Policy.”).


The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(ii).


Registration and Use in Bad Faith


Respondent has made no active use of the disputed domain name which was registered nearly four years ago.  The Panel finds this conduct indicative of bad faith registration and use under Policy ¶ 4(a)(iii).  See DCI S.A. v. Link Commercial Corp., D2000-1232 (WIPO Dec. 7, 2000) (concluding that the respondent’s passive holding of the domain name satisfies the requirement of ¶ 4(a)(iii) of the Policy); see also Mondich v. Brown, D2000-0004 (WIPO Feb. 16, 2000) (holding that the respondent’s failure to develop its website in a two year period raises the inference of registration in bad faith).


The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(iii).



Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.


Accordingly, it is Ordered that the <> domain name be TRANSFERRED from Respondent to Complainant.




James A. Carmody, Esq., Panelist

Dated: October 23, 2007



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